Pittorino v Meynert (As Executrix of the Will of Giuseppe Pittorino (Dec) and as Executrix of the Will of Giuseppina Pittorino (Dec) (also known as Josephine Pittorino)
[2000] WASC 16
•3 FEBRUARY 2000
PITTORINO -v- MEYNERT (AS EXECUTRIX OF THE WILL OF GIUSEPPE PITTORINO (DEC) AND AS EXECUTRIX OF THE WILL OF GIUSEPPINA PITTORINO (DEC) (also known as JOSEPHINE PITTORINO) & ORS [2000] WASC 16
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 16 | |
| Case No: | CIV:2012/1999 | 27 JANUARY 2000 | |
| Coram: | MASTER SANDERSON | 3/02/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Extension granted | ||
| PDF Version |
| Parties: | ELIZABETH GLORIA PITTORINO FERNE PETA MEYNERT (AS EXECUTRIX OF THE WILL OF GIUSEPPE PITTORINO (DEC) AND AS EXECUTRIX OF THE WILL OF GIUSEPPINA PITTORINO (DEC) (also known as JOSEPHINE PITTORINO) CATERINA PITTORINO VICTORIA PITTORINO UMBERTO PITTORINO |
Catchwords: | Practice and procedure Application for extension of time Turns on its own facts |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972, s 7(2)(b) |
Case References: | Clayton v Aust (1992) 9 WAR 364 Grigoriou v Nitsos (as executor of the estate of Athanasois Nichos) [1999] WASCA 42 Re Salmon (Dec) [1981] 1 Ch 167 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
FERNE PETA MEYNERT (AS EXECUTRIX OF THE WILL OF GIUSEPPE PITTORINO (DEC) AND AS EXECUTRIX OF THE WILL OF GIUSEPPINA PITTORINO (DEC) (also known as JOSEPHINE PITTORINO)
First Defendant
CATERINA PITTORINO
Second Defendant
VICTORIA PITTORINO
Third Defendant
UMBERTO PITTORINO
Fourth Defendant
(Page 2)
Catchwords:
Practice and procedure - Application for extension of time - Turns on its own facts
Legislation:
Inheritance (Family and Dependants Provision) Act 1972, s 7(2)(b)
Result:
Extension granted
Representation:
Counsel:
Plaintiff : Mr M J McCusker QC & Mr M J Hawkins
First Defendant : Mr L A Tsaknis
Second Defendant : No Appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiff : Murcia & Associates
First Defendant : Gibson Tovey Mills
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Case(s) referred to in judgment(s):
Clayton v Aust (1992) 9 WAR 364
Grigoriou v Nitsos (as executor of the estate of Athanasois Nichos) [1999] WASCA 42
Re Salmon (Dec) [1981] 1 Ch 167
Case(s) also cited:
Nil
(Page 3)
1 MASTER SANDERSON: This is the plaintiff's application for an extension of time within which to bring proceedings under the Inheritance (Family and Dependants Provision) Act 1972 (as amended) ("the Act") in relation to the estate of Giuseppe Pittorino. The application is made under s 7(2) (b) of the Act which reads as follows:
"No application under subsection (1) of this section shall be heard by the Court unless -
(a) the application is made within six months from the date on which the Administrator becomes entitled to administer the estate of the deceased in Western Australia; or
(b) the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time."
2 Giuseppe Pittorino died on 2 June 1997. Probate of his will was granted on 12 August 1998. The six month time period under s 7(2)(a) of the Act expired on 12 February 1999. An originating summons purportedly brought under the provisions of the Act in relation to a claim against the estate of Giuseppe Pittorino was filed on 13 September 1999. A chamber summons seeking an extension of time within which to make an application in relation to the deceased's estate was filed on 8 October 1999. Leave was required before proceedings could be initiated under the Act. The period of the delay, then, is between 12 February 1999 and 8 October 1999 - a period of just under eight months.
3 It is apparent from the terms of s 7(2)(b) that the court has an unfettered discretion to extend time when it "is satisfied that the justice of the case (so) requires". In Clayton v Aust (1992) 9 WAR 364 Malcolm CJ (with whom Rowland and Franklyn JJ agreed) quoted with approval what was said by Megarry VC in Re Salmon (Dec) [1981] 1 Ch 167 as to what factors are to be taken into account in the exercise of the discretion. His Lordship said (at 174 - 176):
"I am anxious not to go further than is proper in attempting to discover guidelines in exercising the court's discretion under section 4. I bear in mind what Ungoed-Thomas J said on this; and in saying what I do, I disclaim any intention to lay down principles, although I am not sure that it makes it much better to use the term 'guidelines' in place of 'principles'. However, after 14 years I think that some progress can be made towards
(Page 4)
- identifying some guidelines. A number of points seem reasonably plain. The first two are sufficiently supported by re Ruttie [1970] 1 WLR 89, 93. First, the discretion is unfettered. No restrictions or requirements of any kind are laid down in the Act. The discretion is thus plainly one which is to be exercised judicially, and in accordance with what is just and proper. Secondly, I think that the onus lies on the plaintiff to establish sufficient grounds for taking the case out of the general rule, and depriving those who are protected by it of its benefits. Further, the time limit is a substantive provision laid down in the Act itself, it is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus, I think, no triviality: the applicant must make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time.
… The whole of the circumstances must be looked at, and not least the reasons for the delay, and also the promptitude with which, by letter before action or otherwise, the claimant gave warning to the defendants of the proposed application.
… it is obviously material whether or not negotiations have been commenced within the time limit; for if they have, and time has run out while they are proceeding, this is likely to encourage the court to extend the time. Negotiations commenced after the time limit might also aid the applicant, at any rate if the defendants have not taken the point that time has expired.
… For most people, there is a real difference between the bird in the hand and the bird in the bush. In addition, of course, the beneficiaries are more likely to have changed their position in reliance on the benefaction if they have actually received it than if it lies merely in prospect."
4 His Lordship also went on to say that it was relevant to consider whether or not the plaintiff had redress against any party if the extension of time was not granted. This last criteria was further developed by the Full Court in Grigoriou v Nitsos (as executor of the estate of Athanasois Nichos) [1999] WASCA 42. In this case it was apparent that the reason for the delay was largely attributable to the inaction of the plaintiff's solicitors. It seemed likely that if leave was refused the plaintiff would
(Page 5)
- have had an action against her solicitors. Ipp J, (with whom White and Steytler JJ agreed) had this to say at par 17:
"In my opinion, where delay in making an application in terms of s 7(1) is due to the conduct of an applicant's solicitors, the 'justice of the case' requires all the relevant circumstances to be examined to determine the extent to which the solicitors' fault is to be attributed to the applicant. It should not automatically follow that the solicitors' neglect will be visited upon the applicant: after all, that might not meet the justice of the case. This underlies the approach in Brown v Holt [1961] VR 435 and Re Traeger deceased [1948] SASR 248, both being cases involving a failure by solicitors to give timeous notice of applications under legislation similar to the Inheritance (Family and Dependants Provision) Act. In both cases the reasonableness of the conduct of the applicant, as well as that of the applicant's solicitors, was regarded as relevant."
6 As I indicated above, Giuseppe Pittorino, the father of the plaintiff, died on 2 June 1997. Giuseppina Pittorino, the mother of the plaintiff and the wife of Giuseppe Pittorino, died on 16 December 1997. She left a will, probate of which was granted on 6 April 1999. Both wills are in very similar terms. In each will by cl 1(1) the first defendant is appointed the executrix. Clause 2(2) then directs that the property of the deceased is to pass to the trustee of the Pittorino Family Arrangement Trust ("the Trust"). The Trust is a discretionary trust under which the plaintiff is a beneficiary. However, as the Trust is discretionary there is no guarantee that the plaintiff will receive any distribution from the Trust and there is certainly no indication that any of the assets of either of the deceased will be passed on to the plaintiff via the Trust. It was common ground between the parties that the combined assets of the two deceased which have passed to the Trust are in the region of $4.8 million.
(Page 6)
7 The correspondence passing between solicitors for the plaintiff and solicitors for the first defendant makes it plain that from at least January 1998 the plaintiff was concerned about the contents of her parents' wills and the distribution that she might receive thereunder. By letter dated 21 January 1998 the plaintiff's solicitors wrote to the first defendant's solicitors seeking copies of the wills of both of her deceased parents and seeking further information. The tone of that letter and of subsequent correspondence suggests that it must have been plain to the first defendant from at least the date of her solicitor's letter, the plaintiff had an interest in the estates of both of her parents beyond any interest she might have pursuant to the will. Furthermore, at some time prior to 18 March 1998 the plaintiff proposed a meeting between herself and her three siblings to discuss the contents of the wills and her concerns in relation to the estates generally. This offer of a meeting was repeated throughout the correspondence. Of course the correspondence was directed to the first defendant's solicitors and the first defendant, as executor of the estate was not in a position to speak for the plaintiff's siblings or to meet with the plaintiff and settle any matters on her own behalf. Nonetheless, the first defendant must have been aware of the plaintiff's interest in the estate and, properly advised, would have been aware of the plaintiff's right to make a claim under the Act. On or about 2 February 1998 the plaintiff lodged a caveat against the grant of probate to the estate of her late father. The caveat appears as Annexure "EOS2" to the affidavit of Elizabeth Jane Louise O'Sullivan, sworn 10 September 1999. The caveat states that the plaintiff was seeking to protect an interest she had in her late father's estate pursuant to the Act. Clearly, the lodging of the caveat was misconceived. It is generally accepted that an application under the Act can only be brought once probate has been granted. Furthermore, any interest claimed in the estate pursuant to the Act would not provide proper grounds for lodging of a caveat. Nonetheless, at the latest by 2 February 1998, the first defendant must have known that the plaintiff claimed an interest under the Act against her late father's estate.
8 On 6 March 1998 the plaintiff's solicitors wrote to the first defendant's solicitors asking as to the progress of the probate of each of her parents' estates. No response was received to that letter and the plaintiff's solicitors wrote again to the first defendant's solicitors on 18 March. Still no reply was received and a further letter was sent to the first defendant's solicitors by the plaintiff's solicitors on 3 April 1998. Eventually, the first defendant's solicitors replied by letter dated 17 April. It is perhaps significant that no mention was made of the grant of probate.
(Page 7)
- Further correspondence followed which dealt with matters not presently relevant. On 18 June 1998 the plaintiff's solicitors wrote to the first defendant's solicitors dealing with certain matters and asking again the fate of the application for probate. By letter of 19 June 1998 the first defendant's solicitors advised that an application had been made for probate of the estate of Giuseppe Pittorino but no application had yet been lodged with respect to Giuseppina.
9 On 5 March 1999 the plaintiff's solicitors again wrote requesting advice as to whether or not probate of the estate of either of the plaintiff's deceased parents had been granted. The first defendant's solicitors replied by letter dated 1 July 1999. They advised that probate of Giuseppe Pittorino's will had been granted on 12 August 1998. In the previous 11 months, despite a plethora of correspondence passing between the solicitors, the first defendant's solicitors had not seen fit to advise the plaintiff's solicitors that probate of Giuseppe Pittorino's will had been granted. This omission is very difficult to understand.
10 During the course of his submissions counsel for the first defendant made much of the fact that there was no affidavit from the plaintiff as to the efforts she had made to ensure that her solicitors took some steps to further her claim under the Act. On the morning of the hearing counsel for the plaintiff tendered an affidavit of Elizabeth Jane Louise O'Sullivan, sworn 25 January 2000. This affidavit deals with instructions received by Ms O'Sullivan in relation to the plaintiff's action under the Act. In summary, Ms O'Sullivan says that she was in frequent contact with the plaintiff and the plaintiff was at all times anxious to pursue her case. However there were matters to do with the estate which required clarification, particularly as to the nature of the assets and the way in which the trust would be administered by the first defendant. Further, Ms O'Sullivan says at all times the plaintiff was anxious to reach an accommodation with her siblings so as to avoid the necessity to take proceedings under the Act. It is clear this was the case from the correspondence. There are frequent references to meetings the plaintiff attempted to arrange with her siblings. In my view, this affidavit evidence establishes that the plaintiff was not indifferent to the action but took all reasonable steps to ensure that it was pursued promptly.
11 In my view, this is a case where it is appropriate to extend the time within which the plaintiff can bring her action. In reaching that conclusion I am mindful that the onus is on the plaintiff to establish sufficient grounds for taking the case out of the general rule and depriving the beneficiaries of the estate of the protection otherwise offered by the
(Page 8)
- time limit. However it seems to me that taking into account the whole of the circumstances justice requires that time be extended. In reaching this conclusion I have had regard to a number of particular matters. First, the plaintiff made it plain that she was concerned about the disposition of her father's estate pursuant to the will and if she did not directly indicate that she intended to proceed under the Act it must have been apparent to the first defendant, properly advised, that an application was likely. Second, although negotiations did not commence immediately in the context of the Act, the efforts of the plaintiff to arrange a meeting with her siblings to attempt a settlement establish that she put the first defendant on notice the prospect of an application at an early stage. Thirdly, there is no evidence that the beneficiaries have altered their position based upon a belief that no action under the Act would be initiated. Finally, the plaintiff has not been indifferent to the fate of any action but has been consistently involved and concerned with the outcome of any proceedings.
12 Taken together, these matters are in my view decisive. I would extend the time for bringing an application. I will hear the parties as to the precise form of the orders and as to costs.
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