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 on 20 August 2015 I published reasons dealing with its proper interpretation: see Rainoldi v Rainoldi [2015] WASC 312. As a consequence of that decision the plaintiff is to receive no interest in the orchard under the deceased's will.
The principles upon which leave to bring an application out of time were considered by the Full Court in Clayton v Aust (1993) 9 WAR 364. They can be summarised as follows:
(a)the discretion to grant leave is unfettered but must be exercised judicially;
(b)the onus lies on the applicant for leave to establish sufficient grounds for taking it out of the general six month time limit; there needs to be a substantial case for it being just for the court to exercise its discretion;
(c)the court has to consider the reasons for the delay and how promptly the applicant acted once they knew about the Act;
(d)it is relevant if negotiations were undertaken within the six month time limit;
(e)it is relevant to consider whether the estate has been distributed so as to leave the beneficiaries at risk of having changed their position;
(f)it is relevant to consider whether the delay was the fault of the applicant or their solicitors;
(g)if leave were to be refused will the applicant have recourse against anyone else; and
(h)does the applicant have an arguable case on the merits.
The time for the bringing of this application expired on 29 November 2012. This application was brought on 17 April 2014. The delay is not inconsiderable.
The third and fourth defendants oppose the grant of any extension. Their submissions focused on two of the grounds I have referred to above. First, they said there had been no adequate explanation for the delay. Second, and perhaps most importantly, they maintained the plaintiff had not put before the court sufficient evidence to establish she may have a claim under the Act. Specifically, it was submitted the evidence of the plaintiff as to her financial position both as at the date of death of the deceased and now was not sufficiently precise so as to allow any realistic assessment of whether or not she might have a claim.
On behalf of the plaintiff it was submitted the authorities showed that there was a community expectation that a testator would make provision for a widow to ensure she can live an independent and dignified life. That prospect is diminished when the widow does not have the benefit of the fee simple of a matrimonial home. Reference was made to the New South Wales decisions of Hertzberg v Hertzberg [2003] NSWCA 311 and Luciano v Rosenblum (1985) 2 NSWLR 65. In that latter case it was said Powell J formulated a broad general rule that a deceased husband should ensure that his widow is secure in the matrimonial home with an income sufficient to permit her to live in the style to which she is accustomed and with a fund to enable her to meet any unforeseen contingencies.
Relying upon this broad general principle it was submitted by counsel for the plaintiff the mere fact the plaintiff did not have any interest left to her in the former matrimonial home and the orchard meant that she may have a claim under the Act. Given this was an application for an extension of time that was sufficient to justify a conclusion the plaintiff 'may' have a cause of action and therefore sufficient to found a grant of leave.
On behalf of the third and fourth defendants it was submitted the alleged entitlement of a de facto widow to be left the matrimonial home was nothing more than a broad general rule. It was one matter that was to be taken into account along with other matters relevant to the question of whether there was 'adequate and proper' provision made under the will. Counsel referred to the New South Wales decisions of Sekers v Sekers [2010] NSWSC 59 and Carey v Robson [2009] NSWSC 1142. Reference was also made to what was said by Callinan and Heydon JJ in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [122].
Perhaps inevitably reference was also made to the decision of Mitchell J in Craig v Craig [2015] WASC 109. Based upon this decision it was said it was not enough for an applicant for an extension of time to point to the fact that the deceased did not leave the matrimonial home to her. It was necessary for an applicant to establish that in all the circumstances the gifts made to her by the will when taken with her personal resources at the time of death were inadequate.
Against this background the third and fourth defendants made pointed criticisms of the plaintiff's evidence. They submitted the plaintiff's initial affidavit in support of the application for leave sworn 17 April 2014 was wholly inadequate regarding her financial position at the date of death of the deceased and as at the date of the affidavit. When these inadequacies were raised with the court on 1 May 2014 an order was made that the plaintiff file an affidavit setting out her financial position. Despite the fact that on 25 August 2015 the plaintiff's financial position at the date of death of the deceased was raised with her there is still no information regarding her financial position.
It was also said the plaintiff had not been frank regarding the matters she raised with the court. It is unnecessary for me to detail the complaints of the third and fourth defendant. It is sufficient if I say that on 20 August 2015 the fourth defendant raised queries regarding the plaintiff's current financial position which have not been answered: see attachment TAR1 to the affidavit of Tracey Anne Rainoldi sworn 17 November 2015. In addition it was submitted as the plaintiff is both the plaintiff for relief and administrator of the estate it was incumbent upon her to provide proper information regarding the state of her affairs as well as the position of the estate.
Counsel for the fourth defendant then referred to a number of specific areas where it was said the plaintiff had not provided sufficient disclosure of her financial affairs. These are detailed in par 12 of counsel's written submissions. It is unnecessary for me to go through the seven specific items mentioned. A flavour of the nature of the complaints can be ascertained by offering by way of example par 12(b) of the submissions. It reads as follows:
b.there has been no response to the request that the plaintiff explain the substantial difference in her earnings between the 2011 year and the 2012 and 2013 tax years.
Further specific complaints were made as to the lack of financial information available about the affairs of the estate. Four items were mentioned in the written submissions and again the flavour of these submissions can be illustrated by quoting par 12(j):
She has paid a very significant sum, $58,243.18, to lawyers between July 2013 and May 2014, out of estate funds ... when it is now clear that she was taking advice with respect to matters that were relevant to her own as well as the estate's business.
Counsel also submitted the plaintiff has significant assets in her own right. It would appear she owns three properties and has an interest in another property with her sister. Counsel pointed out no information was given about the value of these properties nor was there any indication of what rental was derived from them. It was said these omissions taken together with the lack of candour in relation to the financial affairs both of the plaintiff personally and of the estate meant it could not reasonably be concluded the plaintiff may have a cause of action against the estate.
Care must be taken when considering the amount of detail that is required on an application for an extension of time. It is not a de facto trial of the claim itself. The requirement is an applicant must show that he or she has an arguable cause of action against the estate. It is not necessary to show a prima facie case or that there is a strong possibility of a claim succeeding. The fact is here the plaintiff lives on the orchard and has done for many years. She, and she alone, works the orchard and although there appears to be a question as to whether the business is financially viable in the long term, it is presently her source of income. It seems clear if any application was brought the financial details necessary to support the application would have a degree of complexity. In my view it is not necessary to go into any details beyond what the plaintiff has said in this case. It seems to me in the circumstances of this case the fact the plaintiff has not been left an interest in the orchard taken together with the financial information which has been disclosed is sufficient to conclude she may have a cause of action.
As to the delay I am satisfied that has been adequately explained. The plaintiff's solicitors advised the solicitors for the fourth defendant on 12 December 2013 and the solicitors for the third defendant on 19 December 2013 an application for leave would be made. True it is the application was then delayed for some four months. It must be borne in mind however no one was sure how the will operated. Prior to the proper interpretation of the will being determined it was difficult for the plaintiff to know whether or not she had a claim. In all the circumstances I am satisfied the delay has been adequately explained and does not stand as an impediment to an extension of time being granted.
In all the circumstances then I am satisfied it is proper to grant an extension of time to bring this application. I will hear from the parties as to the form of orders and as to costs.