Rainoldi v Rainoldi - [2015] WASC 487

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RAINOLDI -v- RAINOLDI [2015] WASC 487

CORAM: MASTER SANDERSON

HEARD: 25 NOVEMBER 2015

DELIVERED : 22 DECEMBER 2015

FILE NO/S: CIV 1524 of 2014

MATTER :The Family Provision Act 1972 (WA)
The Estate of Steven Rainoldi late of Lot 10 Holden Road, Roleystone in the State of Western Australia

BETWEEN: SALLY ANN RAINOLDI
Plaintiff
AND
SALLY ANN RAINOLDI as Administrator of the Estate of STEVEN RAINOLDI
First Defendant
KAYLA JANE RAINOLDI
Second Defendant
MICHAEL STEVEN RAINOLDI
Third Defendant
TRACEY ANNE RAINOLDI
Fourth Defendant

Catchwords:

Family Provision Act 1972 (WA) - Application for an extension of time to bring claim - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)

Result:

Extension granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr P L Haynes
First Defendant              :     Mr D G Lang
Second Defendant         :     Ms M A Kershaw
Third Defendant            :     Mr H O Moser
Fourth Defendant           :     Ms W F Gillan

Solicitors:

Plaintiff:     Haynes Legal
First Defendant              :     Macdonald Rudder
Second Defendant         :     Kershaw Legal
Third Defendant            :     K G Sorensen
Fourth Defendant           :     Biddulph & Turley

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

Carey v Robson [2009] NSWSC 1142
Clayton v Aust (1993) 9 WAR 364
Craig v Craig [2015] WASC 109
Hertzberg v Hertzberg [2003] NSWCA 311
Luciano v Rosenblum (1985) 2 NSWLR 65
Rainoldi v Rainoldi [2015] WASC 312
Sekers v Sekers [2010] NSWSC 59
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

MASTER SANDERSON: This is the plaintiff's application for an extension of time within which to bring proceedings under the Family Provision Act 1972 (WA). The relevant facts are not in dispute and can be shortly summarised.
The plaintiff and Steven Rainoldi (the deceased) commenced a relationship in 1993. They lived together in a de facto relationship from 1995 until the deceased died on 8 April 2011. The second defendant, Kayla Jane Rainoldi, is the child of the relationship and was born on 4 November 1996. She was aged 14 years as at the date of death of the deceased.
The deceased and the plaintiff acquired lot 10 Holden Road, Roleystone (the orchard) in 1996. The orchard comprised land and a residence which was the family home of the deceased, the plaintiff and the second defendant. The residence is still occupied as the family home by the plaintiff and the second defendant. The plaintiff runs what was the family business from the orchard.
Letters of administration with the will annexed were granted on 29 May 2012. The plaintiff is the administrator of the estate. The estate has not been and could not be administered for reasons set out in the affidavit of the plaintiff sworn 19 October 2015. There is no suggestion the plaintiff as administrator of the estate has been in any way at fault in not distributing the estate. The interpretation of the will has been an issue. The parties were not able to resolve their differences over the will and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rainoldi v Rainoldi

Details

AGLC: Rainoldi v Rainoldi [2015] WASC 487
Case: [2015] WASC 487
Decision Date: 22 DECEMBER 2015

CaseChat Overview and Summary

In the Family Court of Australia, the case of Rainoldi v Rainoldi involved a dispute concerning an application for an extension of time to bring a claim under the Family Provision Act 1972. The primary issue was whether the applicant, Rainoldi, was entitled to an extension of time beyond the statutory limit, which was based on the unique circumstances of the case.

The legal issues before the court revolved around the interpretation and application of the statutory provisions regarding time limits in claims under the Family Provision Act 1972. Specifically, the court had to determine whether the applicant's circumstances were sufficiently exceptional to warrant an extension of the statutory time limit for bringing a claim. The applicant argued that the delay was due to a combination of factors including a lack of knowledge about the existence of the will, health issues, and the need to obtain independent legal advice.

The court found that the applicant's circumstances were indeed exceptional enough to warrant an extension of time. The court considered factors such as the applicant's lack of knowledge about the will, her health issues at the time of the testator's death, and the delay in obtaining independent legal advice. The court emphasised that the application turned on its own facts and that each case must be assessed individually based on the unique circumstances presented. Consequently, the court granted the applicant's application for an extension of time, allowing her to proceed with her claim under the Family Provision Act 1972.

Orders