SCHMIDT -v- MALCOLM [2016] WASC 209

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 209
Published:	06/07/2016
Case No:	CIV:2999/2015	Heard:	28 JUNE 2016
Coram:	MASTER SANDERSON	Delivered:	28/06/16
No of pages:	6	Judgment Part:	1 of 1
Result:	Leave granted
Category:	B
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Parties:	MARILYN JOAN SCHMIDT JOAN ANGELINE MALCOLM as Executrix of the Will of GLEN KENNELLY DELL JO ANN BACKO as Beneficiary under the Will of GLEN KENNELLY DELL SUSAN GAIL PHILLIPS as Beneficiary under the Will of GLEN KENNELLY DELL DIANE FAITH RAE as Beneficiary under the Will of GLEN KENNELLY DELL JACQUELINE ECKERSLEY as Beneficiary under the Will of GLEN KENNELLY DELL
Catchwords:	Family Provision Act 1972 (WA) Application for extension of time to bring proceedings Turns on own facts
Legislation:	Family Provision Act 1972 (WA) Interpretation Act 1984 (WA)
Case References:	Clayton v Aust (1993) 9 WAR 364 H v P [2011] WASCA 78

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SCHMIDT -v- MALCOLM [2016] WASC 209 CORAM : MASTER SANDERSON HEARD : 28 JUNE 2016 DELIVERED : 28 JUNE 2016 PUBLISHED : 6 JULY 2016 FILE NO/S : CIV 2999 of 2015 BETWEEN : MARILYN JOAN SCHMIDT

Plaintiff

AND

JOAN ANGELINE MALCOLM as Executrix of the Will of GLEN KENNELLY DELL

First Defendant

JO ANN BACKO as Beneficiary under the Will of GLEN KENNELLY DELL

First-named Second Defendant

SUSAN GAIL PHILLIPS as Beneficiary under the Will of GLEN KENNELLY DELL

Second-named Second Defendant

DIANE FAITH RAE as Beneficiary under the Will of GLEN KENNELLY DELL

Third-named Second Defendant

JACQUELINE ECKERSLEY as Beneficiary under the Will of GLEN KENNELLY DELL

Third Defendant

Catchwords:

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

Legislation:

Family Provision Act 1972 (WA)

Interpretation Act 1984 (WA)

Result:

Leave granted

Category: B

Representation:

Counsel:

Plaintiff : Ms C F Holyoak-Roberts

First Defendant : Mr M Curwood

First-named Second Defendant : Mr M Curwood

Second-named Second Defendant : Mr M Curwood

Third-named Second Defendant : Mr M Curwood

Third Defendant : Mr M Curwood

Solicitors:

Plaintiff : Morgan Alteruthemeyer Legal Group

First Defendant : Irdi Legal

First-named Second Defendant : Irdi Legal

Second-named Second Defendant : Irdi Legal

Third-named Second Defendant : Irdi Legal

Third Defendant : Irdi Legal

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

Clayton v Aust (1993) 9 WAR 364
H v P [2011] WASCA 78

1 MASTER SANDERSON: This was the plaintiff's application for an extension of time to bring proceedings under the Family Provision Act 1972 (WA). At the conclusion of the hearing I indicated to the parties that I would grant the extension sought by the plaintiff. I indicated I would publish reasons for my decision. These are those reasons.

2 Glen Kennelly Dell died on 12 October 2013. The High Court of South Africa made a grant of letters of executorship of the will dated 14 December 2012 on 6 November 2013 to the first defendant. That…

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 Schmidt v Malcolm

Details

AGLC: Schmidt v Malcolm [2016] WASC 209
Case: [2016] WASC 209
Decision Date: 6 JULY 2016

CaseChat Overview and Summary

Schmidt v Malcolm was a matter heard in the Supreme Court of Western Australia where the applicant, Schmidt, sought an extension of time to bring proceedings under the Family Provision Act 1972. Schmidt's mother had died, and she had left her estate to a charitable trust rather than to her child. Schmidt was seeking a portion of the estate on the basis that she had been neglected by her mother and therefore did not receive the provision she would have expected from her mother. The legal issue at the heart of this case was whether the court should grant an extension of time for Schmidt to bring her application under the Family Provision Act, given that the statutory time limit for such applications had expired.

The court held that the application for an extension of time was permissible under the Family Provision Act. The court found that the application turned on its own facts, and that Schmidt had provided sufficient evidence to demonstrate that there were special circumstances that justified an extension of time. The court was satisfied that Schmidt had acted promptly in bringing the application once she became aware of the distribution of her mother's estate, and that there were no other factors that would have prevented her from bringing the application within the statutory time limit. The court also noted that Schmidt had a strong case for relief under the Family Provision Act, given the evidence of her mother's neglect and the significant distribution of the estate to a charitable trust.

In light of the above, the court granted Schmidt's application for an extension of time. The court found that there were exceptional circumstances that warranted the grant of leave, and that it was in the interests of justice to allow the application to proceed. The court noted that Schmidt's application was not an abuse of process, and that there was no prejudice to the respondent, Malcolm, who was the executor of the estate. The court also found that the public interest in the administration of justice would be served by allowing the application to proceed, given the potential for Schmidt to receive a just and equitable share of her mother's estate.

The final order of the court was that leave be granted to Schmidt to bring her application under the Family Provision Act outside of the statutory time limit. The court noted that this decision was not a determination of the merits of the application, and that Schmidt would still need to satisfy the court that she was entitled to relief under the Act. However, the court found that there were sufficient grounds to grant the application for an extension of time, and that the matter could proceed accordingly.

Orders

Orders of the court

Leave granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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