Swainston v Muni
[1999] WASC 201
SWAINSTON -v- MUNI & ANOR [1999] WASC 201
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 201 | |
| Case No: | CIV:1412/1999 | 30 SEPTEMBER 1999 | |
| Coram: | MASTER SANDERSON | 21/10/99 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Time for making application extended | ||
| PDF Version |
| Parties: | RONALD SWAINSTON WAYNE ANTHONY MUNI DENISE YVETTE BROWN |
Catchwords: | Inheritance (Family and Dependants' Provision) Act 1972 Application for extension of time Principles Delay by solicitors Effect of prejudice to applicant of delay by solicitors |
Legislation: | Inheritance (Family and Dependants' Provision) Act 1972, s 7(1)(a) and s 7(2)(a) |
Case References: | Clayton v Aust (1993) 9 WAR 364 Grigoriou v Nitsos (As the executor of the Estate of Athanasosis Nichos) & Ors [1999] WASCA 42 Re Salmon (Dec) [1981] Ch 170 Esther Investments v Markalinga (1989) 2 WAR 196 Girando v Girando, unreported; FCt SCt of WA; Library No 970525; 14 October 1997 Re Lauer (Dec) [1984] VR 180 Re Marland (Dec) [1957] VR 338 Re Nassim (Dec) [1984] VR 51 Newman v Newman [1927[ NZLR 418 Re Prakash [1981] Qd R 189 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
Estate of ETHEL MARGARET SWAINSTON (DEC)
BETWEEN : RONALD SWAINSTON
- Plaintiff
AND
WAYNE ANTHONY MUNI
First Defendant
DENISE YVETTE BROWN
Second Defendant
Catchwords:
Inheritance (Family and Dependants' Provision) Act 1972 - Application for extension of time - Principles - Delay by solicitors - Effect of prejudice to applicant of delay by solicitors
(Page 2)
Legislation:
Inheritance (Family and Dependants' Provision) Act 1972, s 7(1)(a) and s 7(2)(a)
Result:
Time for making application extended
Representation:
Counsel:
Plaintiff : Mr J R Johnson
First Defendant : Mr D C Rice
Second Defendant : Mr D C Rice
Solicitors:
Plaintiff : Ilbery Barblett
First Defendant : Griffiths Rice & Co
Second Defendant : Griffiths Rice & Co
Case(s) referred to in judgment(s):
Clayton v Aust (1993) 9 WAR 364
Grigoriou v Nitsos (As the executor of the Estate of Athanasosis Nichos) & Ors [1999] WASCA 42
Re Salmon (Dec) [1981] Ch 170
Case(s) also cited:
Esther Investments v Markalinga (1989) 2 WAR 196
Girando v Girando, unreported; FCt SCt of WA; Library No 970525; 14 October 1997
Re Lauer (Dec) [1984] VR 180
Re Marland (Dec) [1957] VR 338
Re Nassim (Dec) [1984] VR 51
Newman v Newman [1927[ NZLR 418
(Page 3)
Re Prakash [1981] Qd R 189
(Page 4)
1 MASTER SANDERSON: This is an application by the plaintiff for an extension of time within which to bring proceedings under the Inheritance (Family and Dependants' Provision) Act 1972 ("the Act"). The plaintiff is the husband of Ethel Margaret Swainston ("the deceased") who died on 2 May 1995. The deceased prepared a will dated 28 April 1983. Probate of this will was granted on 15 August 1995. Pursuant to the terms of the will, the first defendant was appointed the executor of the deceased's estate.
2 Under the provisions of s 7(1)(a) of the Act the plaintiff is a person entitled to bring a claim. Section 7(2) of the Act is in the following terms:
"No application under subsection (1) of this section shall be heard by the Court unless -
(a) the application is made within six months from the date on which the administrator becomes entitled to administer the estate of the deceased in Western Australia; or
(b) the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time."
3 The time limit for the filing of any application under the Act expired on 15 February 1996. This application was filed on 20 April 1999. Despite this lengthy delay the plaintiff now says that the justice of the case requires that he be given leave to file an application out of time.
4 The reasons for the delay in making this application are set out in two affidavits of the plaintiff - the first sworn 13 April 1999 and the second sworn 14 July 1999. The first affidavit was prepared by E N Stamatiou & Co, the plaintiff's then solicitors. The affidavit sets out details as to the plaintiff's belief that the deceased would leave him her half interest in the matrimonial home, the only significant asset of the estate. He then goes on to detail his declining health and his financial circumstances as the basis upon which an extension of time to bring an application should be granted. There is no explanation in this affidavit as to why an application was not made within the time prescribed by the Act.
5 The second affidavit was prepared by Messrs Ilbery Barblett, a notice of change of solicitors having been filed on 12 May 1999. This affidavit goes into some detail as to why an application was not filed within time. The plaintiff says that after the death of his wife he consulted E N Stamatiou & Co "within a matter of days". He was advised that it was open to him to bring a claim under the Act and he was also advised
(Page 5)
- that his prospects of success in the action were good. He says that, upon receiving such advice he instructed his solicitors to proceed with an application. He paid $2,000 on account of the legal work which was to be undertaken by E N Stamatiou & Co. He also says that he was advised that it could take "several years" for the application to be resolved.
6 On 7 June 1995 the plaintiff's then solicitors did write to the first defendant notifying him of the plaintiff's intention to make a claim under the Act. This letter is to be found as Annexure "WAM1" to an affidavit of the first defendant sworn 1 June 1999. There followed a further letter of 23 June 1995 from E N Stamatiou & Co to the defendant's solicitors. This letter is to be found as Annexure "WAM2" to the defendant's affidavit. The letter deals with various assets of the estate, but makes no mention of an application under the Act. That, it would appear, is the end of the correspondence initiated by E N Stamatiou & Co.
7 The plaintiff says in his affidavit sworn 14 July 1999 that in or about mid June 1995 he contacted Mr Stamatiou to find out if there had been any developments. He says he was advised during the course of this conversation that nothing had been agreed and that it would be appropriate to issue proceedings. He says he instructed his solicitors to proceed without delay. It is clear that no application was issued and that E N Stamatiou & Co did not comply with their client's instructions. As to steps taken by the plaintiff, he explains the position as follows:
"10. Over the following 12 month period from that time [the time in mid June when he spoke to Mr Stamatiou], I repeatedly telephoned Mr Stamatiou to find out the progress of my Application to the Court. Mr Stamatiou repeatedly assured me over this time that the Application had been lodged and he told me it was being listed and was waiting for a date from the Court. Mr Stamatiou repeatedly assured me that everything was under control.
11. I would estimate that I telephoned Mr Stamatiou 20 - 30 times over this initial 12 month period to be met with this response. Mr Stamatiou was very difficult to contact by telephone and I was repeatedly given excuses that he was busy with clients or in Court and so could not speak to me. Almost without exception, my telephone messages were not returned. Given my difficulties in contacting Mr Stamatiou by telephone, I in fact visited his offices on approximately 12 occasions over the initial 12 month
(Page 6)
- period to try and find out what was happening with my Application. When I met with Mr Stamatiou on these occasions he would repeat the same comments 'that everything was under control' and 'the Application was waiting for a hearing date'."
8 The plaintiff goes on to say that for the next 12 months he approached Mr Stamatiou's office on a monthly basis. He had some difficulty speaking with Mr Stamatiou and when he did so he was advised that the application was proceeding. It is not clear what steps the plaintiff took between mid 1998 and early 1999. What can be said is that he did not receive any correspondence from his then solicitors. In January 1999 the plaintiff was approached by the defendant. The defendant demanded the Certificate of Title to the matrimonial home saying that, pursuant to the provisions of the will of the deceased, he intended to have himself registered as a beneficial owner of a half interest in the property. Not surprisingly, this came as a shock to the plaintiff. He immediately telephoned Mr Stamatiou to ascertain the position. He was advised that the application to the Supreme Court could not be found and that no notice of hearing had been received from the Court. It would appear that it was not until 1 April 1999 that the plaintiff was advised by Mr Stamatiou that his application was out of time. The application for the extension of time was filed just under three weeks later.
9 In Clayton v Aust (1993) 9 WAR 364 Malcolm CJ set down guidelines for dealing with applications for an extension of time under the Act. His Honour did so by reference to the decision of Megarry VC in Re Salmon (Dec) [1981] Ch 170 at 175. The guidelines proposed by his Honour can be summarised in the following way:
(1) The discretion to grant an extension of time is unfettered. No restrictions or requirements of any kind are laid down in the Act. The discretion is thus plainly one that is to be exercised judicially, and in accordance with what is just and proper.
(2) The onus is on the plaintiff to establish sufficient grounds for taking the case out of the general rule and depriving the respondents to the action of the protection offered by the statutory limitation on the time in which an action must be brought. This is not a mere procedural time limit imposed by the rules of court. The applicant must make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.
(Page 7)
- (3) The whole of the circumstances must be looked at and not least the reasons for the delay and also the promptitude with which the letter before action or otherwise was issued.
(4) It is material to know whether or not negotiations commenced within the time limit. If negotiations were commenced within time and ran out while discussions were taking place, this might encourage an extension of time being granted. If negotiations were initiated after the time had expired without the time limit point being taken, this too may aid the applicant.
(5) It is relevant to consider whether or not the estate has been distributed as at the date of the application. The fact the beneficiary has changed his or her position consequent upon the distribution of the estate is a factor weighing against the grant of an extension of time.
(6) It is relevant to consider whether a refusal to extend the time would leave the claimant without redress against anybody.
10 It is to be noted that in setting out these rules his Honour did not intend to provide an exhaustive and rigid framework within which applications of this type are to be determined. After all, relief is discretionary and the discretion is unfettered. The same point was made by Megarry VC in Re Salmon (Dec) (supra). Each case must depend upon its particular circumstances.
11 In Grigoriou v Nitsos (As the executor of the Estate of Athanasosis Nichos) & Ors [1999] WASCA 42 the Full Court again considered the basis upon which applications such as this should be determined. The facts in the Grigoriou case as set out by Ipp J (at par 4) were as follows:
"The applicant is the daughter of the deceased who died on 11 November 1997. The principal asset in the estate consisted of a property in East Perth worth about $300,000. The balance of the estate was worth about $27,700. In terms of the will of the deceased the applicant received one third of that part of the estate not including the property, in other words, about $9,300. The main beneficiaries under the will of the deceased were the third respondents (who are the sons of the applicant's brother): they became entitled to the property.
Before this Court it was not disputed that the evidence of the applicant established, at least, an arguable case that by his will
(Page 8)
- the deceased did not make adequate provision for her maintenance, support, education or advancement in life. Further, it is at least arguable that the applicant has a moral claim for relief under the Act."
12 Coincidentally, E N Stamatiou & Co, the plaintiff's previous solicitors in this action, were solicitors for the applicant in the Nitsos case, at least at first instance although they had been substituted by the time the appeal was heard. As in this case, in the Nitsos case proceedings were not commenced within six months of the grant of probate as is required by s 7(2). The application for an extension of time was made some month or six weeks after the six month time period had expired. It was not disputed, either at first instance or on appeal, that responsibility for the failure to commence proceedings lay squarely with the applicant's solicitors. At first instance I determined that no extension of time to bring the application ought be granted. In particular, I was influenced by the fact that the failure to proceed was the fault of the solicitors and that, under the compulsory insurance scheme available in Western Australia the applicant had recourse to their solicitors and their insurers. Against this decision the applicant applied for leave to appeal. Leave to appeal was granted and the appeal was allowed. In the course of his reasons, Ipp J said at par 17 and par 18:
"In my opinion, where delay in making an application in terms of s 7(1) is due to the conduct of the applicant's solicitors, the 'justice of the case' requires all the relevant circumstances to be examined to determine the extent to which the solicitors' fault is to be attributed to the applicant. It should not automatically follow that the solicitors' neglect will be visited upon the applicant: after all, that might not meet the justice of the case. This underlies the approach in Brown v Holt [1961] VR 435 and Re Traeger deceased [1948] SASR 248, both cases involving a failure by solicitors to give timeous notice of applications under legislation similar to [the Act]. In both cases the reasonableness of the conduct of the applicant, as well as the applicant's solicitors was regarded as relevant. …
The material before the learned Master contained no evidence as to steps taken by the applicant herself (as opposed to Stamatiou & Co) in attempting to ensure that her application was brought within time. For the reasons I have explained, this was of fundamental importance. The Court raised this issue with counsel when argument on the application for leave to
(Page 9)
- appeal commenced. At the invitation of the Court, counsel for the applicant thereupon applied for leave to lead the evidence of the applicant in this respect."
13 After reviewing the evidence led on behalf of the applicant, the court was satisfied that the justice of the case required an extension of time for leave being granted. The court acknowledged that the applicant might well have a sound case against her solicitors. However, his Honour concluded at par 27:
" … the applicant's damages in such a case would be based on the loss of the chance of succeeding in her claim under s 7(1): Instant Nominees Pty Ltd v Redmond [1987] WAR 218 (at 226) per Burt CJ. On this basis there is a real prospect of the applicant obtaining an order for damages that would be less than the amount she could recover under s 7(1). Further, the prosecution of such a claim would take far longer and be far more expensive than the prosecution of her claim under the Act. The aforegoing represented a serious degree of prejudice to the applicant. This has to be seen in the light of the fact that the new evidence established that no blame whatever attached to her in respect of the failure to bring the application within the six month period required by s 7(2)(a). On the contrary, as mentioned, she had done everything that could have been expected of her."
14 In the light of the decision in Nitsos it might perhaps be necessary to recast the principles laid down in Clayton v Aust. When considering the reasons for delay under point (3), reference should be had to whether or not the applicant contributed to the delay or whether the reasons for the delay could be sheeted home to the applicant's solicitors. It may also be that the relevance of point (6) in the guidelines is questionable. Of course, as I have indicated above and as has been frequently mentioned in all of the decisions involving applications of this sort, each case must be determined on its own facts.
15 Turning then to the present case, it is clear that the plaintiff has an arguable case. He is entitled to bring an action under the provisions of s 7(1). His evidence makes it plain that the primary asset of the estate, the matrimonial home, was acquired over many years as a joint asset by the plaintiff and the deceased. The plaintiff clearly anticipated that, if he was predeceased by his wife, he would remain in the matrimonial home. His health is failing and his financial position is precarious. It is only
(Page 10)
- necessary for me to determine whether or not he has an arguable case and on the evidence I am satisfied that he does.
16 In relation to the reasons for the delay, I am satisfied that no blame can be attached to the plaintiff. He appears to have taken all possible steps to progress his claim. To adopt the wording of the Full Court in Nitsos - "the evidence establishes that no blame whatever can be attached to the plaintiff in respect of the failure to bring an application within the six month period required by s 7(2)(a)". For the reasons set out in the Nitsos decision, I am satisfied that if the plaintiff was left to proceed against his former solicitors and their insurers there is a real risk that he would receive something less than his entitlement if he were to succeed under the provisions of the Act.
17 Furthermore, the defendant has not altered his position so that if the application were granted it would be to his detriment. The estate has not been distributed and that is not a factor operating against the grant of the extension of time. No negotiations were entered into and that is not a relevant consideration.
18 In all the circumstances, I am satisfied that the justice of the case requires that the applicant be given leave to file out of time. I will hear the parties as to the precise form of the orders.
19 In the Nitsos case the court, after granting the application for leave to appeal and allowing the appeal, made an order in terms of O 66 r 5(1)(b) calling upon E N Stamatiou & Co, the applicant's former solicitors, to show cause why an order should not be made requiring them to pay all the costs of the applicant and the respondent, both on an indemnity basis and to repay any costs already paid to them. I propose to make a similar order. It seems to me that, on the facts as set out in the plaintiff's affidavit, responsibility for the delay rests squarely with the plaintiff's former solicitors. They should show cause why costs ought not be awarded against them.
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