Sims v McDowall as Executor of the Estate of RC Sims - [2022] WASC 283

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SIMS -v- MCDOWALL AS EXECUTOR OF THE ESTATE OF RC SIMS [2022] WASC 283
CORAM:   MASTER SANDERSON
HEARD:   20 JUNE 2022
DELIVERED          :   14 SEPTEMBER 2022
PUBLISHED           :   14 SEPTEMBER 2022
FILE NO/S:   CIV 1153 of 2022
BETWEEN:   ALAN RONALD SIMS
Plaintiff

AND

JENNIE MARIE MCDOWALL AS EXECUTOR OF THE ESTATE OF RC SIMS
First Defendant

JENNIE MARIE MCDOWALL
Second Defendant

ALEXANDRA JENNIE OGG
Third Defendant

CAMERON DONALD MCDOWALL
Fourth Defendant

Catchwords:

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

Legislation:

Family Provision Act 1972 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	J J Hockley
First Defendant	:	N Siegwart
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Solicitors:

Plaintiff	:	SJB Legal
First Defendant	:	Birman & Ride
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

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

Clayton v Aust (1993) 9 WAR 364

MASTER SANDERSON:

This was the plaintiff's application for an extension of time to bring proceedings under the Family Provision Act 1972 (WA) (the Act). The six-month limitation period prescribed by s 7(2)(a) of the Act would have expired on 17 March 2020. This application was filed on 23 February 2022. The application is brought under s 7(2)(b) of the Act.
The parties agreed as to the relevant principles. In par 6 of his written submissions, counsel for the plaintiff summarised the position as follows (counsel for the first defendant expressly adopted this statement of principle in his written submissions):
6.In Hyde v Palfrey [2017] WASC 65, Master Sanderson summarised the relevant principles set out in Clayton v Aust (1993) 9 WAR 364 at [2] as:
[2]There was no dispute between the parties as to the relevant principles. They were set out by the Full Court in Clayton v Aust (1993) 9 WAR 364 and can be summarised as follows:
(a)the discretion of the court is unfettered but must be exercised judicially and in accordance with what is just and proper.
(b)the onus is on the plaintiff to establish sufficient grounds for taking the matter out of the general rule and depriving those who are protected by it of its benefits.
(c)the time limit in the Act is a substantive provision and not a mere procedural time limit.
(d)it is material when considering the application to consider how promptly and in what circumstances the plaintiff has brought an application for an extension of time (the length and reason for the delay).
(e)it is relevant to consider whether there have been any negotiations with the defendant during the six-month time limit.
(f)it is relevant to consider whether the estate has been distributed before the claim was made or notified.
(g)it is relevant to consider whether a refusal to extend time would leave the plaintiff without redress against anybody.
(h)it is relevant to consider whether the plaintiff has an arguable case on the merits, but no detailed examination of the plaintiff's claim is warranted.
The application was supported by an affidavit of the plaintiff sworn 23 February 2022. In opposition to the application, the first defendant relied on an affidavit sworn 18 May 2022. The defendant objected to certain paragraphs of the plaintiff's affidavit. These objections were flagged in the written submissions. After hearing argument, I indicated to the parties that pars 17, 30(b), 37 and 40 of the plaintiff's affidavit to which objection was taken would be permitted to stand. Paragraphs 52, 54 and 55 were struck out. I indicated I would provide reasons for this decision. What follows is an expansion on the brief oral reasons I gave at the time I made the ruling.
Each of the four paragraphs I allowed to remain in the affidavit were subject to the same objection. The position can be illustrated by quoting par 17. It reads as follows:
17.I do not believe that statement of assets and liabilities is accurate insofar as it fails to disclose all the assets of my father at the date of his death including, but not limited to, loans which he made to members of my family prior to his death, and which remained outstanding and unpaid at the date of his death.
The defendant complained this statement was a 'bald statement of information/belief without setting out the sources or grounds of that information/belief'. It is the case the paragraph complained of lacks detail. But it is implicit the plaintiff has reached his belief based upon his dealings with his father and his siblings. To the extent there is a lack of detail, that tells against the plaintiff when the evidence is weighed. But I am satisfied that despite manifest defects, the evidence is properly presented and was admissible. I adopted the same approach with the three other paragraphs to which objection was taken.
Turning then to the paragraphs which were struck out, the first defendant's complaint was that these paragraphs were secondary evidence and argumentative. It was said the documents referred to in the paragraphs speak for themselves. The position here can be illustrated by quoting par 52. If reads as follows:
52.What has emerged as is evidenced in my solicitors letters dated 6/9/2021 and 16/9/2021 and the reply from Askew & Co dated 15/9/2021 is an issue as to whether my father had lent money to, and was owed money at the date of his death, by Cameron McDowall and Mark Aaron Ogg. I have repeatedly asked Jennie, via her solicitors Askew & Co, to provide full details and documentation, and a history of the creation of loans, which she has failed to do. I do not believe the statement of asses and liabilities filed with this Court as annexure 'E' is accurate, in that those loans are not recorded therein, and ought to be.
The first defendant's point is well made. Really, the plaintiff is simply summarising the correspondence. The letters themselves were in evidence and no objection was taken to them being tendered. They speak for themselves. Any submissions as to how the letters ought be interpreted is a matter for counsel.
The relevant facts can be summarised as follows. Ronald Charles Sims died on 17 September 2019 (deceased). A grant of probate of the deceased's will dated 6 November 2018 was made to his daughter, the first defendant on 18 October 2019. The plaintiff is the deceased's son. The third and fourth defendants are the deceased's grandchildren.
The plaintiff was born in January 1957 and is 65 years of age. He is single, has never been married and he has no children and no dependents. He resides in a property in Gosnells which he owns and has owned since 1998. He left school at around 13/14 years of age and apart from being licensed to drive road trains, he has no trade skills or qualifications. He has never undertaken any tertiary education. He has not worked since he turned 42 years of age and his only income is a disability pension which pays approximately $976 per fortnight.
It is clear the plaintiff had a difficult relationship with the deceased. It is the plaintiff's belief that when he was young he was physically assaulted by the deceased and those assaults left him with significant physical and neurological injuries. The plaintiff did see the deceased shortly before he passed away. He asked the deceased whether in fact he (the deceased) had assaulted the plaintiff. The deceased denied the allegation. The plaintiff did not then see the deceased before his death.
At the age of 42, the plaintiff suffered what he describes as a 'brain haemorrhage'. He says this caused him 'significant mental health issues'. This and other physical causes have prevented the plaintiff from working.
Turning to the plaintiff's financial position, he puts the value of his home in Gosnells at $450,000. He has savings of approximately $11,000. He has a mortgage on the Gosnells property in an amount of $42,000 and a liability to Legal Aid of approximately $3,500. The plaintiff says the deceased gave him approximately $40,000. This was done by the deceased forgiving a liability the plaintiff had to the deceased.
The plaintiff's income from his pension only just covers his expenses. It is clear his day to day financial position is finely balanced.
The plaintiff says he was informed by the first defendant shortly after the deceased passed away that she was the executor of the deceased's estate. He is not sure when he was first informed of the contents of the will - that is to say whether he was informed before or after the grant of probate. I will come back to this issue when dealing with the evidence of the first defendant. For present purposes, it is enough to note there is no suggestion the plaintiff was not promptly informed about the contents of the will. In fact, by his will, the deceased divided his estate into four parts. The plaintiff and the first defendant received one quarter each as did the third and fourth defendants. The estate has now been distributed and the plaintiff received approximately $135,000.
Between pars 36 and 44 of his affidavit, the plaintiff leads certain evidence about funds passing from the estate of his mother and his uncle to the deceased. The plaintiff clearly believes there was more in his father's estate than is disclosed by the statement of assets and liabilities prepared by the first defendant. While that may be his belief, there is nothing in the evidence to support his contentions - if indeed he is contending there has been some failure on the part of the first defendant to disclose all the assets of the deceased. While these issues may be of concern to the plaintiff, there is simply nothing in the evidence which would support approaching this matter other than on the basis the first defendant has made full and frank disclosure and the net value of the estate is as stated.
The plaintiff says that he first sought advice in relation to the deceased's will on 1 September 2020. When he did seek advice from solicitors, he was made aware of the six-month time limit in the Act. By the time the plaintiff consulted solicitors he was just short of six months out of time. It is not entirely clear from the plaintiff's affidavit what advice he was given in relation to the expiry of the limitation period or what instructions he gave to his solicitors. However, it seems that it was not until 24 June 2021 correspondence was sent by the plaintiff's solicitors to the first defendant's solicitors in relation to the estate. The plaintiff appears to offer two explanations for taking no steps for nine months. First, he refers to COVID-19 pandemic and says because he was not vaccinated, he largely remained in his home and was not in a position to instruct solicitors. He further says that he was inhibited by mental health issues. With respect to both of these matters, there is a real lack of detail.
It is not clear why it is the plaintiff could not have instructed solicitors by telephone. I accept the pandemic has made life extremely difficult. It has required a different approach to many areas of life including instructing solicitors. But individuals have adapted. There is no suggestion the plaintiff's solicitors would not have accepted instructions by telephone. In relation to the mental health issues from which the plaintiff says he suffers, there is nothing in the evidence which would explain why these issues prevented the plaintiff advancing his case. He does say he suffers from depression and that condition is long standing. While that may explain in part the delay, there is no detailed explanation of just what was preventing the plaintiff from instructing his solicitors for a six-month period.
What does emerge is that between 24 June 2021 and 23 December 2021, correspondence passed between the plaintiff's solicitors and the first defendant's solicitors. On 31 January 2022, the first defendant provided the plaintiff's solicitors with a detailed account of her dealings with the estate. While the plaintiff appears to be sceptical this document is accurate, he does not point to any mistakes or errors. Rather, he seems to again allege the estate has a greater value than that stated by the first defendant. But again, there is nothing in the plaintiff's evidence which would allow such a conclusion to be drawn.
Turning then to the evidence of the first defendant, she provides copies of the accounts of the estate and confirms a distribution to each of the beneficiaries. The final distribution was made in January 2022 and the estate is now fully administered. In fact, the first defendant says she has incurred legal fees in the order of $8,000 dealing with the passing of accounts of the estate and she has no funds from the estate to meet these costs.
The first defendant is 62 years of age and is the full-time carer of her husband who is aged 76. Both the first defendant and her husband receive a Centrelink pension. They own their own house in Thornlie which the first defendant estimates is worth $450,000. Both the first defendant and her husband have small sums in superannuation. Apart from motor vehicles, they do not have any other significant assets.
The third and fourth defendants are the first defendant's children. The third defendant has one dependent child, the fourth defendant has four dependent children. Both the third defendant's child and one of the children of the fourth defendant have significant health issues. No detailed evidence of the financial position of the third and fourth defendants is provided. It may be assumed that while they are comfortably placed, neither is well off.
In his written submissions, counsel for the first defendant focused on four main factors which, in his submission, tipped the balance in favour of refusing leave. First, there was the length of the delay and reasons for the delay. Counsel pointed out the plaintiff was informed soon after the death of the deceased the first defendant was executor of the deceased's estate. Upon learning the contents of the deceased's will, the plaintiff was unhappy but did not take any advice until September 2020. When he did take advice, he was informed of the time limit and that the time limit had expired. Yet still no steps were taken. It was counsel's submission there was no adequate explanation for the delay even making allowances for the difficulties caused by the pandemic and the plaintiff's unstable mental health. Essentially, counsel's point was that the time limit was substantive and if an extension was to be granted more by way of explanation it needed to be provided by the plaintiff.
On behalf of the plaintiff, it was said the delay was adequately explained. The important features were the plaintiff's fragile mental state and the limitations placed on him by the pandemic. While it was accepted he could have acted with greater dispatch, this was not a case where the delay was such as to put the plaintiff out of court.
On balance, I am satisfied the length of the delay and the inadequate explanation for the delay are factors against the grant of an extension. It is difficult to see why, if the plaintiff was unhappy with the contents of the deceased's will, he waited until 1 September 2020 before seeking legal advice. While some delay after receiving the advice is understandable, the explanation provided by the plaintiff is not adequate. While I would not see this factor in and of itself as being determinative of this application, it nonetheless does weigh against the grant of an extension of time.
The second factor highlighted by counsel is the fact the estate has been distributed. The final distribution was made in January 2022 and were the plaintiff now to be given leave and were his claim to be successful, steps would have to be taken to call back from the beneficiaries at least part of what has been distributed to them. Of course, that can be done but insofar as the evidence goes, it would seem to involve some difficulty. It is the case the first defendant could have held onto the assets of the estate and made no distribution until she was certain no action would be taken by the plaintiff. But given the length of time that had elapsed since the plaintiff was advised of the contents of the will, it was not unreasonable for her to distribute the estate. On balance, this is a further factor against the grant of leave.
Third, counsel focused on the value of the estate. The total net value of the assets of the deceased's estate was approximately $530,000. By today's standards, that is a very small estate. If leave were granted and proceedings were issued, the costs would quickly diminish funds available to the beneficiaries. This too is a factor against the grant of an extension of time.
Finally, counsel dealt with the merits of the plaintiff's claim. He pointed out that there was a real issue whether the plaintiff would be able to successfully pursue a claim. The leading authority in this area remains the decision in Clayton v Aust (1993) 9 WAR 364. That case was a successful appeal against a decision of Master Bredmeyer who had found the applicant's case was 'barely arguable'. The Full Court said it was an error of principle to attempt to weigh the merits of a claim in an application for an extension of time. All that needed to be determined was that the applicant's case was 'arguable'. There has been subsequent authority to the effect that if a claim is clearly on its face deemed to fail, then this is not only a factor against a grant of leave, but may be determinative of the issue. This is not a case where I could conclude the plaintiff's position is hopeless. He clearly is in a difficult financial position and his position in life would be advanced if he received a greater distribution from the deceased's estate. Of course, against that are the competing claims of other beneficiaries and perhaps the relationship between the plaintiff and the deceased. But I would accept the plaintiff's case is arguable. That is a factor in favour of the grant of leave.
These four factors are the main issues in this case. Weighing them in the balance, I am not satisfied it is proper to grant an extension of time. The three factors which weigh against the grant very much overwhelm the fact the plaintiff has an arguable case. The arguments advanced on behalf of the first defendant should be accepted and the application for the application for the extension of time ought be dismissed.
On publication of these reasons the parties will have seven days to file short submissions as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AH
Associate to Master Sanderson
14 SEPTEMBER 2022