SWAINSTON -v- MUNI & ANOR [1999] WASC 201

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 201
Case No:	CIV:1412/1999	Heard:	30 SEPTEMBER 1999
Coram:	MASTER SANDERSON	Delivered:	21/10/99
No of pages:	10	Judgment Part:	1 of 1
Result:	Time for making application extended
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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

CITATION : SWAINSTON -v- MUNI & ANOR [1999] WASC 201 CORAM : MASTER SANDERSON HEARD : 30 SEPTEMBER 1999 DELIVERED : 21 OCTOBER 1999 FILE NO/S : CIV 1412 of 1999 MATTER : Inheritance (Family and Dependants' Provision) Act 1972

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…

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 Swainston v Muni

Details

AGLC: Swainston v Muni [1999] WASC 201
Case: [1999] WASC 201
Decision Date

CaseChat Overview and Summary

The case of Swainston v Muni & Anor [1999] WASC 201 involves Ronald Swainston, the plaintiff, who sought an extension of time to bring a claim under the Inheritance (Family and Dependants' Provision) Act 1972 against the executors of his late wife's estate, Wayne Anthony Muni and Denise Yvette Brown. The plaintiff's initial application was filed well beyond the statutory six-month limit, necessitating the application for an extension. The legal issues revolved around whether the delay in filing was justifiable under the principles established for such applications and if the justice of the case warranted an extension.

The court considered several factors, including the reasons for the delay, the plaintiff's conduct, and the potential prejudice if the application were denied. The plaintiff's solicitors, E N Stamatiou & Co, had failed to initiate the proceedings within the statutory period, despite being properly instructed. The plaintiff himself had taken reasonable steps to ensure that his claim was pursued. The court noted that the delay was not due to any fault on the part of the plaintiff, who had been misled by his solicitors about the status of the application. Furthermore, the estate had not been distributed, and there were no negotiations that could have affected the plaintiff's position.

After weighing these factors, the court concluded that the justice of the case required the granting of the extension. The court acknowledged the plaintiff's arguable case and the potential prejudice if he were left to pursue claims against his former solicitors and their insurers. The final orders included granting the plaintiff leave to file his application out of time and directing the former solicitors to show cause why they should not be ordered to pay costs on an indemnity basis.

Orders