Scott v Hamilton
[2014] WASC 365
•2 OCTOBER 2014
SCOTT -v- HAMILTON [2014] WASC 365
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 365 | |
| Case No: | CIV:1907/2014 | 18 SEPTEMBER 2014 | |
| Coram: | MASTER SANDERSON | 2/10/14 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | SONIA ANN SCOTT JEFFREY RAYMOND HAMILTON PETER WILLIAM SILVERWOOD |
Catchwords: | Family Provision Act 1972 (WA) Application for extension of time to bring proceedings Plaintiff twice advised before expiry of period not to proceed Turns on own facts |
Legislation: | Family Provision Act 1972 (WA) |
Case References: | Clayton v Aust (1993) 9 WAR 364 Grigoriou v Nitsos [1999] WASCA 42 Kalaf v Mallis [2014] WASC 237 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
The Estate of Patricia Ann Hamilton
- Plaintiff
AND
JEFFREY RAYMOND HAMILTON
First Defendant
PETER WILLIAM SILVERWOOD
Second Defendant
Catchwords:
Family Provision Act 1972 (WA) - Application for extension of time to bring proceedings - Plaintiff twice advised before expiry of period not to proceed - Turns on own facts
Legislation:
Family Provision Act 1972 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr A C McIntosh
First Defendant : Mr P A Nevin
Second Defendant : No appearance
Solicitors:
Plaintiff : CD Lawyers
First Defendant : Taylor Smart
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Clayton v Aust (1993) 9 WAR 364
Grigoriou v Nitsos [1999] WASCA 42
Kalaf v Mallis [2014] WASC 237
1 MASTER SANDERSON: This is the plaintiff's application for an extension of time in which to bring proceedings under the Family Provision Act 1972 (WA). The plaintiff's application is supported by three affidavits sworn by her: the first on 30 June 2014, the second on 12 August 2014, and the third on 9 September 2014. She also relies on an affidavit of Benjamin Hamilton Dickens sworn 9 September 2014. In opposition to the application the first defendant relies upon three affidavits all sworn 29 August 2014. There is an affidavit of Kenneth Simon Edwards, an affidavit of Jeffrey Raymond Hamilton, and an affidavit of Peter Albert Nevin. It would appear the second defendant was not personally served with a copy of this application and the supporting affidavit material. He certainly has not entered an appearance. However, it is also clear he was aware of this application and chose to take no part. In any event all relevant submissions were made by counsel for the first defendant.
2 There was no real dispute between the parties as to the relevant facts and the applicable law. The deceased died on 31 January 2013. The plaintiff and the first defendant are the children of the deceased. By her will the deceased appointed the first defendant as executor of her estate. Probate of the will was granted to the first defendant on 4 April 2013. Under s 7 of the Family Provision Act the plaintiff had until 3 October 2013 to make an application. This present application was lodged on 30 June 2014 - some eight months after the time prescribed in the Act had expired.
3 The value of the deceased's estate is put at $775,088.89. By the terms of her will the deceased left the estate equally to her two children and her brother, the second defendant. The estate has been distributed. Thus the plaintiff and each of the two defendants have received just over $250,000.
4 Section 7(2) of the Family Provision Act provides the court with a discretion to allow for an extension of time to bring proceedings. The discretion is unfettered but over the years a number of cases have set out factors relevant to the exercise of the discretion. The leading authority in this area remains the decision of Clayton v Aust (1993) 9 WAR 364. In his written submissions counsel for the first defendant summarised the eight matters which were referred to in Clayton v Aust. They are:
1. the length of the delay;
2. the reason for the delay;
3. the promptitude with which the claimant gave warning of the proposed application to the defendant;
4. whether negotiations commenced within time but had not been concluded when time had elapsed;
5. whether the estate had been distributed at the time the executor had notice of the action;
6. whether any beneficiary has changed their position in reliance on the distribution;
7. whether the claimant has an arguable case; and
8. whether if the extension was refused the claimant would be left without redress against any other party.
5 To these eight factors I would add one more. It is relevant to consider whether if an applicant instructed solicitors he or she took steps to ensure the solicitors pursued the claim. This ninth proposition emerges from the decision of Grigoriou v Nitsos [1999] WASCA 42.
6 Dealing with each of these matters in turn the first consideration is the length of the delay. As I have indicated it is some eight months. Given there is a six month time limit within which any action must be commenced the length of the delay is significant. But it is not so long as in and of itself being sufficient to refuse an extension of time. On balance the length of the delay marginally favours the application being refused.
7 As with most of these applications the reasons for the delay are central to whether or not the extension ought be granted. In that respect this case is most unusual. The plaintiff says her father created a family trust in July 1976. A copy of the trust deed appears as attachment SAS3 to the plaintiff's first affidavit. It appears to be in a form which in those days was fairly standard. The primary beneficiaries under the trust were the plaintiff and the first defendant. The plaintiff's parents were additional members of the class of general beneficiaries. The guardian and the appointor was the plaintiff's father and upon his death the plaintiff's mother. On the death of the plaintiff's mother the executor of her estate became the appointor. The trust embodies an absolute discretion in the trustee as to the distribution of income from the trust. The plaintiff was not aware of precisely what capital was held by the trust but thought it was in the region of $950,000. She believed the trust held investments which paid dividends in excess of $100,000 per year.
8 Clearly the plaintiff was aware she might have a claim under the provisions of the Family Provision Act. On 27 February 2013 she instructed Contested Wills & Probate Lawyers. Precisely what instructions she gave her solicitors is not clear from the affidavit material. However it is clear these solicitors investigated any potential claim. On 30 May 2013 they wrote to the plaintiff detailing the investigations they had undertaken and their views as to the likelihood of the plaintiff making a successful claim. A copy of their advice appears as attachment SAS6 to the plaintiff's first affidavit. In summary the solicitors concluded the plaintiff could not make a successful claim.
9 Something needs to be said about this advice. First, it is clear the solicitors gathered all relevant information before offering their opinion. They wrote to the executor asking for details of the assets of the estate and copies of all relevant documents. These were provided to the solicitors before they gave their advice. It is clear from the letter of advice that the solicitors saw the plaintiff on at least two occasions.
10 This leads on to the second point. There is nothing in the advice which on the facts of it appears to be incorrect. Rather the solicitors appear to have considered all relevant matters, to have weighed each in the balance, and reached a conclusion which was open on the facts.
11 For reasons which are not explained the plaintiff then decided to obtain a second opinion. In August 2013 she approached Slater & Gordon. They took instructions and on 26 August 2013 provided a letter of advice. That advice is found as attachment SAS8 to the plaintiff's first affidavit. The advice runs to seven pages and is quite detailed. Once again the plaintiff was advised the potential claim was not strong, once again it is difficult to fault the advice. It is comprehensive and takes into account all relevant matters. It is not obviously wrong. There were some further investigations which were undertaken just to ensure all of the assets of the estate had been taken into account. They remained of the view the plaintiff could not successfully maintain a claim.
12 The plaintiff consulted her present solicitors in or about May 2014. Although it is not mentioned by the plaintiff in her affidavits the fact the application for the extension of time was launched does suggest she was advised she had a good claim. There is nothing in the evidence which indicates why the plaintiff's present solicitors took a different view from the two firms she had previously instructed. Certainly there appears to be nothing in the evidence to suggest any relevant fact or matter was overlooked by the two firms who gave their opinion. They were certainly not mistaken as to the value of the estate.
13 There is no explanation in the affidavit evidence as to why after receiving the advice from Slater & Gordon in August 2013 the plaintiff waited until May 2014 before consulting her present solicitors.
14 It is somewhat difficult to know how the plaintiff explains the delay in bringing this application. It would appear she is saying she was advised by solicitors not to proceed and that advice was in error. But no attempt is made to explain how the advice was wrong. So, armed with proper advice the plaintiff decided not to pursue her claim and then changed her mind. Although both counsel in their submissions referred to the Nitsos decision this case is in no way comparable. In Nitsos the plaintiff was advised she did have a good claim, she instructed her solicitors to proceed and they did not do so.
15 Properly viewed I think it must be said the plaintiff made a conscious, well informed decision not to proceed with the action within the time limit. She has now changed her mind. In those circumstances there is not an adequate explanation for the delay and this is a factor which weighs against the grant of the extension.
16 The plaintiff did give the executor notice of a proposed claim. Both of her previous solicitors were in touch with the first defendant or his solicitors. But after giving their advice both firms of solicitors advised the first defendant the plaintiff would not be pursuing her claim. In my view this is not a factor one way or the other.
17 The estate has now been distributed. The first defendant has placed the funds distributed to him an interest bearing account. It was not suggested by counsel for the first defendant had changed his position in reliance upon the distribution. There is no evidence as to the position of the second defendant. In my view the fact that the estate has been distributed is not a factor one way or the other.
18 That then leads to the question of whether the plaintiff has an arguable case. In her second affidavit the plaintiff sets out her financial position in some detail. Her husband suffered an injury some years ago and receives a disability support pension. She has a 19-year-old son who is autistic and a 22-year-old daughter who is a full time student. The couple are dependent upon social security, they have no superannuation and limited savings. They own their own home which is of limited value. There is nothing to suggest the plaintiff will be in a position to obtain gainful employment in the near future or that her husband will return to the workforce.
19 During the course of his submissions counsel for the first defendant submitted the plaintiff's claim should fail because no evidence was provided as to the plaintiff's financial position as at the date of death of the deceased. In other words there was no evidence which would satisfy the jurisdictional question. It is true the affidavit material is directed to the plaintiff's present financial position. But it is possible to infer her position has not changed significantly over the past 20 months. Although it would have been far preferable for the plaintiff to detail her position as at the date of death of the deceased the fact she has failed to do so in the context of this case is of no real consequence.
20 The difficulty with this claim would undoubtedly be the size of the estate. It is relatively small. It was divided equally between the plaintiff and her brother and her uncle. It would seem the first defendant is reasonably comfortably placed. He received a superannuation payout of just over $230,000 because he was the deceased's nominated beneficiary, and it would seem any amount in the family trust will now go to the benefit of the first defendant. But that in and of itself is not enough to ensure the plaintiff would be successful in any action she might bring. It is difficult to know what to make of the advice from two firms of solicitors the plaintiff is unlikely to succeed in her claim. As I have indicated in each case the advice seems to me to be in all respects sound. Both firms practice extensively in the Family Provision Act jurisdiction. It does not seem to me their advice can simply be ignored. After all two out of three lawyers think the claim will fail.
21 On balance it seems to me that while this claim is arguable it is not particularly strong. The weakness of the claim should in my view be regarded as marginally against the granting of leave.
22 It is by no means clear if leave is refused the plaintiff will have any right of redress against any other party. As I have indicated there is nothing to suggest the advice given to the plaintiff by the two firms of solicitors she instructed was wrong. This is certainly not a case such as Kalaf v Mallis [2014] WASC 237 where it could be said there was a real possibility of the solicitors being held liable.
23 Finally, there is no suggestion solicitors instructed by the plaintiff were in any way at fault. They gave their advice promptly and were instructed not to proceed. There was nothing more they could or should have done.
24 It is then a matter of weighing all of these things in the balance. When that is done I am not satisfied it is in the interests of justice the time for bringing an application be extended. Clayton v Aust makes plain the time limit contained in the Family Provision Act is substantive. As with all time limits it is designed to ensure action is taken promptly to allow parties involved to move on with their day to day affairs. The plaintiff had her chance and after receiving advice from competent solicitors she took a decision not to proceed. Now she has changed her mind. There is nothing in the facts of this case that takes it out of the ordinary or suggests a grant of leave would be in the interests of justice. Furthermore the plaintiff's case, while arguable, is not strong. On balance the arguments against the grant of leave carry the day. Accordingly I would dismiss the application. I will hear the parties as to costs.
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