Plane v Drinkall as EXECUTOR of the Will of Thomas Lloyd Plane - [2023] WASC 370

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PLANE -v- DRINKALL - AS EXECUTOR OF THE WILL OF THOMAS LLOYD PLANE [2023] WASC 370
CORAM:   HOWARD J
HEARD:   26 SEPTEMBER 2023
DELIVERED          :   26 SEPTEMBER 2023
PUBLISHED           :   2 OCTOBER 2023
FILE NO/S:   CIV 1523 of 2023
BETWEEN:   GEOFFREY MARK PLANE
Plaintiff
AND
GRAEME LINDAN DRINKALL - AS EXECUTOR
First Defendant
STEVEN ELLIOTT GOODS - AS EXECUTOR
Second Defendant
SEVENTH-DAY ADVENTIST CHURCH (WESTERN AUSTRALIAN CONFERENCE) LTD - AS BENEFICIARY
Third Defendant
FREDERICK LLOYD PLANE - AS BENEFICIARY
Fourth Defendant
JOEL THOMAS PLANE - AS BENEFICIARY
Fifth Defendant

Catchwords:

Application for leave to file application for provision out of an Estate out of time pursuant to s 7(2) of the Family Provision Act 1992 (WA) - Negotiation had commenced between plaintiff and executors of estate prior to expiry of time - Application heard on an uncontested basis - Application allowed

Legislation:

Family Provision Act 1972 (WA)

Result:

Application allowed

Category: B

Representation:

Counsel:

Plaintiff	:	B J Willesee
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	R J Biddulph
Fifth Defendant	:	R J Biddulph

Solicitors:

Plaintiff	:	Springdale Legal
First Defendant	:	Solomon Hollett Lawyers
Second Defendant	:	Solomon Hollett Lawyers
Third Defendant	:	Solomon Hollett Lawyers
Fourth Defendant	:	Biddulph & Turley (Mount Pleasant)
Fifth Defendant	:	Biddulph & Turley (Mount Pleasant)

Case(s) referred to in decision(s):

Andre v Perpetual Trustees WA Ltd [2009] WASCA 14
Clayton v Aust (1993) 9 WAR 364
Craig v Craig [2015] WASC 109
Wheatley v Wheatley [2018] WASCA 34

HOWARD J:

(This judgment was delivered extemporaneously on 26 September 2023 and has been lightly edited for clarity from the transcript.)

This is the plaintiff's application by Originating Summons dated 18 May 2023 to be granted leave pursuant to s 7(2) of the Family Provision Act 1972 (WA) (all statutory references from here are to this Act unless otherwise indicated) to file an application for provision out of the Estate of the late Thomas Lloyd Plane (Deceased or Thomas) pursuant to s 6(1) out of time and within 14 days of the date of an extension order being made.
It is common ground that the plaintiff requires leave as he did not make application within six months from the date on which the administrator became entitled to administer the Estate of the Deceased. Probate of the Deceased's Will was granted on 27 May 2022 to the first and second defendants, so the relevant time expired on 28 November 2022.
It is also relevant to note that the first and second defendants are, respectively, the President and Secretary of the Church which is the third defendant and a beneficiary of the Deceased's Estate.
Sections 7(2) and (3) provide relevantly:
(2)No application under subsection (1) shall be heard by the Court unless -
(a) the application is made within 6 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.
(3)A motion for leave to file out of time may be made at any time notwithstanding that the period specified in subsection (2)(a) has expired.
The question before the Court this morning is whether it is satisfied that the justice of the case requires that the plaintiff be given leave to file out of time.
Relevantly, the Court has the affidavits (in support) of: the plaintiff (Geoff) made 18 May 2023 and 14 August 2023, and Adam David Hornsey (the plaintiff's solicitor) made 18 May 2023. I note that Frederick Lloyd Plane, the fourth defendant, and Joel Thomas Plane, the fifth defendant, had both made affidavits on 31 July 2023 and although I have read them, they have not been taken as being formally read for the purposes of this Application. From here, and without intending any disrespect, I will refer to the plaintiff and the fourth and fifth defendants by their first names.
The Deceased was the father of Frederick, Geoff, and Joel. There was a fourth brother, Daniel Edward Plane, who is now deceased.
Geoff says that he spent approximately 45 years in partnership with his father farming Thomas' farm which is said to be the key asset of the Deceased's Estate. Geoff says that the Deceased's Will essentially (for present purposes) treats him no differently from his brothers and is said to be inequitable when regard is had to Geoff's history of work on the farm and Geoff (and his family) being reliant on income earned from that farming. Here, I am simply recording claims made and am expressing no view as to their merits.
The plaintiff had reached what might be described as a 'standstill agreement' with the Executors of the Estate (the first and second defendants) prior to the expiry of the statutory period by which the period was extended so as to allow time to potentially resolve his claim. It is not asserted that Frederick or Joel were parties to the standstill agreement, nor for that matter were parties to any agreement not to oppose this Application.
This Application is made within the terms of the standstill agreement.
The Executors do not oppose this Application. The third defendant, the Church, was not a party to the standstill agreement, but the first to third defendants by their solicitors have filed a notice of intention to abide the outcome of this Application on 1 June 2023.
Frederick and Joel are represented this morning by their solicitor, Mr Biddulph. Although, as noted they had filed affidavits on 31 July 2023, I am told they were filed prior to their obtaining legal advice. Having obtained legal advice, on 18 September 2023 Frederick and Joel by their solicitors have also filed a notice of intention to abide the decision.
The principles set out in the below paragraphs by reference to the cases apply to an application to extend time under s 7(2) as adopted by Wheatley v Wheatley [2018] WASCA 34 [54] - [64] (Martin CJ, Buss P & Murphy JA).
In Andre v Perpetual Trustees WA Ltd [2009] WASCA 14 [38] - [39] (Steytler P, Pullin & Buss JJA), the Court of Appeal noted:
The time limit provided by s 7(2)(a) is there for obvious reasons. There is a public interest in the prompt administration of estates. Six months is ordinarily more than long enough for a potential claimant to decide whether to bring an application for provision under s 6(1) of the Act. After the lapse of that time, beneficiaries and others who may be affected should ordinarily be entitled to assume that there will be no challenge to the will.
The Court in Andre v Perpetual Trustees WA Ltd [40] - [41] further stated:
[40] … However, it is clear that the discretion is one that must be exercised judicially, in accordance with what is just, and 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': Re Salmon [1981] Ch 167, 175 (Megarry VC); Clayton v Aust (1993) 9 WAR 364, 366 (Malcolm CJ, Rowland & Franklyn JJ).
[41]It is also settled that the strength of the case of an applicant for an extension of time is a relevant consideration. In a number of cases it has been said to be relevant to ask whether the applicant has 'an arguable case': Clayton v Aust 367 - 368
The Full Court in Clayton v Aust (1993) 9 WAR 364 (Malcolm CJ, Rowland & Franklyn JJ) provided the following non-exhaustive guidelines:
(1)the discretion is unfettered. No restrictions or requirements of any kind are laid down in the Act. The discretion is to be exercised judicially and in accordance with what is just and proper: (366).
(2)the onus lies on the applicant to establish sufficient grounds for taking the case out of the general rule, and depriving those who are protected by it of its benefits. The time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by the rules of Court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus 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: (366 - 367).
(3)it is material to consider how promptly and in what circumstances the applicant seeks the permission of the Court after the time limit has expired. The whole of the circumstances must be looked at including the reasons for delay and the promptitude with which the applicant gave warning to the defendants of the proposed application: (367).
(4)if negotiations have been commenced within the time limit, and time has run out while the negotiations 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, in relation to those negotiations, taken the point that time has expired: (367).
(5)it is relevant to consider whether or not the estate had been distributed before a claim under the Act had been made or notified. 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: (367).
(6)it is relevant to consider whether a refusal to extend the time would leave the claimant without redress against anybody: (367).
In Craig v Craig [2015] WASC 109 [34] - [35] Mitchell J (as he then was) explained the second guideline from Clayton v Aust as whether the applicant has an arguable case on the merits and from Andre v Perpetual Trustees WA Ltd, where there is an arguable case the strength of that case may be an important factor to be considered in the overall exercise of the discretion: Wheatley v Wheatley [57], [58].
I have had the benefit of written submissions from Geoff dated 11 September 2023.
In all the circumstances, I will grant the plaintiff the first Order sought in his Originating Summons dated 18 May 2023.
Obviously, the time limitation in the statute is, consistently with the above authorities, the starting point and Geoff must discharge his onus to take this out of the general, substantive rule.
The matters which, in my view, favour the grant of the Application are:
(1)the present attitude of the five defendants, three of whom are beneficiaries under the Deceased's Will, who do not oppose the plaintiff being granted leave;
(2)aside from the third to fifth defendants having the 'ordinary' benefit of the statutory time limit being enforced, there appears to be no prejudice to any of the defendants in leave being granted;
(3)that negotiations commenced within the time limit;
(4)that the Deceased's Estate has not been distributed;
(5)that on its face Geoff's claim has merit - again, for present purposes I am only making a very preliminary (non‑binding) assessment (indeed as the matter appears set to proceed, it is preferable that I say as little as possible about an assessment of the merits); and
(6)if I were to refuse leave, that would not necessarily prevent Geoff from commencing separate proceedings against the Deceased's Estate to litigate an equitable claim arising out of the facts he asserts in this Application - that is a refusal to grant leave will not, necessarily, quell all controversies between the defendants. And, in that respect, I note that the value of the Deceased's Estate for the purposes of litigation in this Court would not be described as huge.
I will make an Order accordingly.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to Hon Justice Howard
2 OCTOBER 2023