Wheatley v Wheatley - [2018] WASCA 34

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WHEATLEY -v- GWENYTH MARY WHEATLEY as executor of the estate of the late GERALD LEOPOLD WHEATLEY [2018] WASCA 34

CORAM: MARTIN CJ
BUSS P
MURPHY JA

HEARD: 7 FEBRUARY 2018

DELIVERED : 19 MARCH 2018

FILE NO/S: CACV 76 of 2016

BETWEEN: SCOTT ANTHONY WHEATLEY
Appellant
AND
GWENYTH MARY WHEATLEY as executor of the estate of the late GERALD LEOPOLD WHEATLEY
First Respondent
GWENYTH MARY WHEATLEY
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :WHEATLEY -v- WHEATLEY [2016] WASC 248
File No  :CIV 1254 of 2016

Catchwords:

Family Provision Act 1972 (WA) - Application for extension of time to bring application - Delay of seven years - Whether open to master to find that there was no satisfactory explanation for delay - Reexercise of discretion

Legislation:

Family Provision Act 1972 (WA), s 6(1), s 7(2), s 8, s 9, s 10
Trustees Act 1962 (WA), s 65

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant:     Mr M D Cuerden SC
First Respondent           :     Mr M N Solomon SC & Mr A M Houghton
Second Respondent      :     Mr M N Solomon SC & Mr A M Houghton

Solicitors:

Appellant:     Sparke Helmore
First Respondent           :     Arns & Associates
Second Respondent      :     Arns & Associates

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

Allmark v Mossensons [2006] WASCA 127
Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14
Clayton v Aust (1993) 9 WAR 364
Coates v National Trustees, Executors and Agency Company Ltd [1956] HCA 23; (1956) 95 CLR 494
Coffey v Bennett [1961] VR 264
Craig v Craig [2015] WASC 109
Easterbrook v Young [1977] HCA 16; (1977) 136 CLR 308
Estate of Barry (Dec); Carcosta v Executive Trustee and Agency Co South Australia (1974) 9 SASR 439
Lewin v Desma Ann Kimpton as executor of the estate of Charles Howard Lewin [2014] WASCA 131
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Neill v Nott [1994] HCA 23; (1994) 121 ALR 148
Re Barrot [1953] VLR 308
Re Guskett [1947] VLR 212
Re Marland [1957] VR 338
Re Nassim (Dec) [1984] VR 51
Re Salmon (Dec) [1981] Ch 167
Re Walker (Dec) [1967] VR 890
Wheatley v Wheatley [2016] WASC 248
Young v Kestel (As Executor of the Will and Estate of Douglas Tate Young (Dec)) [2003] WASCA 190

JUDGMENT OF THE COURT: The appellant seeks leave to appeal against a decision of Master Sanderson in Wheatley v Wheatley (primary decision).[1] That decision concerned the appellant's application to extend the time to bring an application for family provision from the estate of his late father pursuant to the Family Provision Act 1972 (WA) (Act).
[1] Wheatley v Wheatley [2016] WASC 248.
The appellant (who, for present purposes, will be referred to as the son) filed the application in the primary proceedings on 19 February 2016. The father died on 8 May 2008. By his will he left the whole of the estate to his wife, the first and second respondent (who will be referred to as the widow or the mother).[2] By s 7(2) of the Act, the time for bringing proceedings for provision under the Act expired in April 2009, subject to any extension of time granted. Accordingly, the son required an extension of time of approximately seven years. The learned master dismissed the son's application for an extension of time. For the reasons which follow, the appeal should be allowed, and the time extended.
[2] The widow is the first respondent in her capacity as executrix and the second respondent in her personal capacity.

Background

The following matters are taken from the master's findings and the evidence before the master. The matters referred to below are, in the broad, not in contest on the affidavit material before the master, save to the extent expressly indicated.

Events prior to and as at the date of the father's death

The father died on 8 May 2008, leaving an estate worth approximately $7 million. Probate was granted to the widow on 16 October 2008. The widow is the sole beneficiary of the father's estate. The father's will made no provision for the son or his sister, Sian.[3]
[3] Primary decision [1].
The son was born on 25 July 1980 and was 27 at the time of his father's death. Throughout his life he was encouraged by his father to pursue the life of a farmer.[4] The farms, at the time of his father's death, comprised 19 lots consisting of approximately 2,400 acres.[5]
[4] Primary decision [7].
[5] Appellant's affidavit sworn 17 February 2016 (appellant's first affidavit), pars 15 ‑ 17; GB 16.
The son's affidavit material included evidence to the following effect, which the master accepted for the purposes of the application. The father had created an expectation that the farms were to become the son's upon the father's death. The father had expressed the desire on a number of occasions for the son to inherit the farms and continue the farming enterprise like his father and grandfather before him. The son said that he made substantial contributions to the farms and farming business. After the father's ability to run the farm was diminished due to injury and poor health, the son gave up his own carpentry business to return to the farms and work the farming business with his father. By returning to the farms he reduced his income and arguably reduced his future income prospects. The son introduced modern farming techniques to his father's farming operation. He expanded the farming operations and generated new income streams for the farming business. He did not receive any financial benefit from the additional income generated and, between 2002 and 2008, he worked for a relatively modest income and received little in the way of financial benefit. He worked long hours and did everything that was necessary to advance the farming enterprise.[6]
[6] Primary decision [7] ‑ [9].
The widow disputed various aspects of the son's evidence, including in relation to the extent of and effective remuneration for the son's work on the farm prior to the father's death.[7]
[7] Respondent's affidavit sworn 21 April 2016 (respondent's affidavit) pars 10 ‑ 24; GB 223 - 228.
The master, after recording the son's evidence, said:[8]
At the time of the [father's] death, his estate was worth approximately $7 million. It is the [son's] case that there had as a consequence of the [son's] efforts arisen a moral obligation on the part of the [father] to provide for the [son]. Doubtless provision had to be made for the [father's] widow, the second defendant. But even taking that into account, it is the [son's] position he would satisfy the jurisdictional test so as to enliven the court's discretion and make provision for him out of the estate.
In my view, there is no doubt the [son] has an arguable case. The way in which he contributed to the development of the estate over the six years between 2002 and 2008 makes it arguable a moral duty arose which the [father] failed to discharge. It is arguable the [son] advanced the interests of the estate very much to the benefit of the [father]. Without in any way determining whether the case is weak or strong, it seems to me it is on balance arguable and that favours the grant of the extension of time.

Events after the father's death

[8] Primary decision [10] - [11].

After the father's death the son was busy working on the farm.[9] He remained in a state of grief for much of the year after his father's death.[10]
[9] Appellant's first affidavit, par 166; GB 29.
[10] Appellant's first affidavit, pars 141 - 142; GB 27.
From discussions with his mother, he understood that the father had not left him anything in his estate, and that all the assets had been left to the mother.[11]
[11] Appellant's first affidavit, par 169; GB 29; respondent's affidavit, pars 26 - 29; GB 228.
According to the son, his mother spoke to him about the inheritance of the farm and said, 'it will all be yours, one day'. The son said that he trusted his mother and did not raise the topic with her again until the middle of 2009.[12] The mother disputed making the statement attributed to her.[13]
[12] Appellant's first affidavit, pars 166 ‑ 171; GB 29.
[13] Respondent's affidavit, par 32; GB 229.
In mid‑2009, the son had a discussion with his mother and a farming consultant on the topic of 'farm succession'. The farming consultant, Mr Day, had helped in the past with preparing budgets for the farm. The mother originally expressed an interest in farm succession planning and said that succession planning was a process, and not an event.[14] However, an agreement about farm succession did not eventuate. The mother told the son that she could not make a decision about it as it was too soon to discuss such matters after the father's death.[15] Also around this time, the mother said that she was still seeing a counsellor concerning her grief over the father's death.[16]
[14] Appellant's first affidavit, pars 179 - 182; GB 30.
[15] Appellant's first affidavit, pars 195 - 196; GB 31 - 32.
[16] Appellant's first affidavit, par 211; GB 33.
Despite this reluctance, the mother later suggested that she and the son attend a bank‑sponsored succession planning seminar in September 2009.[17]
[17] Appellant's first affidavit, pars 200 - 201; GB 32.
On 10 July 2009, the son also consulted Mr Don MacNeil, an accountant, regarding farm succession planning.[18]
[18] Appellant's first affidavit, par 187; GB 31.
On 31 August 2009, the son wrote to the farming consultant in terms including the following:[19]
I am grateful that you have accepted the role of assisting us with the important strategic decisions that my family have to make going forward.
My mother and I realize how important these issues are and we will be attending a Succession Planning seminar run by Westpac this Thursday.
As you know, the context for this meeting is that my father passed away about a year ago and that tragic event has thrown everything into the melting pot in terms of the future direction of our farming business.
Our level of debt is of some concern especially given the financial crisis that has emerged over the last few years.
So the driving forces behind this meeting are serious and very fundamental to the way we have done business in the past. As I understand the situation, my mother owns the business and she also owns all the farmland too following the administration of my father's estate.
I am 30 years of age as at my next birthday and my wages from the farm were $24,000 gross last year and I have effectively worked on the farm since I left school.
I have been talking to several close farming friends who have come through periods of turmoil such as we are now facing and they all say we need professional assistance to get this planning right.
I am therefore writing to you to give you some insights into what I am hoping comes out of this planning process and some of the issues you will no doubt have to confront.
[19] Appellant's first affidavit, pars 202 - 203; GB 32, 108.
On 3 September 2009, the mother, the son and the farming consultant attended the seminar on succession planning.[20]
[20] Appellant's first affidavit, par 216; GB 33; respondent's affidavit, par 36; GB 229.
On 22 October 2009, the mother, the son and the farming consultant met again to discuss estate planning, but nothing was agreed.[21]
[21] Appellant's first affidavit, pars 223 - 224; GB 34.
According to the son, in October 2009:[22]
219.[The accountant - Mr MacNeil] mentioned that there was a possibility that I could have challenged the fact that Mum received all of Dad's property but said that there were time limits and the cost of legal proceedings was significant.
220.I did not want to go to court against Mum, because I didn't want to make the relationship with her any more strained and I thought I could negotiate a solution to the problem with Mum in the form of a farm succession agreement with the right assistance.
221.At that time I did not have money to pursue legal proceedings or pay for legal advice.
[22] Appellant's first affidavit, pars 219 ‑ 221; GB 33 - 34.
The master paraphrased that passage of the son's affidavit as being evidence to the effect that the son was advised by his accountant that he could challenge the father's will, but there were time limits.[23]
[23] Primary decision [15].
On 29 October 2009, the son's accountant sent him an email which, according to the appellant's senior counsel, was the foundation for the evidence referred to in [18] above.[24] This email (which was not before the master) included the following:[25]
[24] Appeal ts 16.
[25] This email was tendered by the appellant on the basis that it was relevant to any re‑exercise of discretion by this court. It became exhibit 1: appeal ts 17, 19.
We have met on 15 occasions and had many more phone discussions in relation to matters that I broadly describe as business planning but encompass estate planning, financial planning, tax planning, succession planning and related issues.
You came to me on 7^th July 2009 ostensibly to examine your future on the farm but it quickly became apparent that you had little or no control over your future as it related to the farm. You do not own the land or any part of it, you do not own the business or any part of it, your wages are manifestly poor if not disgraceful, there is no business plan following your father's death and it is obvious that none of the business advisers are interested in correcting this situation. Indeed you had to prompt/push your farm advisor to arrange some planning meetings which amounted to nothing.
You and your mother attended a bank sponsored workshop on succession planning and you met with Adam Levin of Jackson McDonald lawyers in Perth to see what they could do to assist your family. Their costs were prohibitive but nonetheless you made the effort to meet Adam as part of your process of getting more information about your situation.
…
But I must point out some stark facts-
1.I do not think its [sic] likely your mother will change direction and look at a comprehensive plan of devolving control, transferring land and business assets in a proper and planned way. Her advisers seem to be telling her what she wants to hear rather than robustly challenging some of her 'rusted on ideas' that probably have their origins in her own family background, which by her own admission, was anything but perfect.
2.Sian will undoubtedly share in the farm asset at some stage. The only question is how much. I think you agree she should have a share and I think you should try to talk to her about that point.
3.your father left you and Sian with no assets and no part of his estate. Its [sic] probable that you could have challenged [his] will and the division of his estate. This is a legal matter and I understand there are time limits as well as serious cost considerations.
4.your mother has 100% of the assets and control. You have nothing.
5.in a very real sense you have been emasculated … because you are unable to tell your partner where you are going because you simply do not know. Your mother is 'driving' the business and there is no plan, no direction, no strategies, no buy‑in, big debt, arguments, lack of trust, no real communication, goal posts that move all the time…..all that on top of a big difficult business which you effectively run by yourself.
6.your mother has told you that no land will be transferred into your name until she dies. That could be another 20-30 years down the track and you will be 50-60 years of age.
…
You have some very tough decisions to make and I encourage you to speak to other farmers, trusted family and friends before you take any action.
In around March/April 2010, the relationship between the mother and the son deteriorated, and they argued about what was to happen regarding the farm and the son's future. Around this time, the mother told the son that he was out of time to challenge the father's will.[26]
[26] Appellant's first affidavit, pars 234 - 235; GB 35.
The son left the farm in April 2010.[27] He returned in late July 2010 and did certain work on the farm at the mother's request around August/September 2010. The mother agreed to pay for the work, but did not pay the final invoice issued by the son.[28]
[27] Appellant's first affidavit, pars 239 - 242; GB 35 - 36; respondent's affidavit, par 37; GB 229.
[28] Appellant's first affidavit, pars 243 - 249; GB 36.
Around this time, the mother proposed that the son lease the farm for, in effect, three years, at a rent ranging from $75,000 for the first year to $100,000 for the third year, and hire plant and equipment at $74,700 per annum. She proposed that default interest would be 12% per annum calculated on a daily basis.[29]
[29] Appellant's first affidavit, pars 250 ‑ 251; GB 36; annexure 'SW‑11' to the appellant's first affidavit, pars 3 ‑ 5, 12; supplementary GB 2 - 4.
The son could not afford to lease the property. He had no financial backing which he could use to borrow enough money to perform the lease proposed by the mother.[30] The mother told the son that if he would not lease the farm, then she would lease it to someone else. The son's accountant told him to get legal advice about his position.[31] In August 2010, the son sought legal advice.
[30] Appellant's first affidavit, par 255; GB 37.
[31] Appellant's first affidavit, pars 256 - 257; GB 37.
The son said:[32]
258.I sought legal advice in August 2010 from solicitors … and was told that I should try to address all outstanding issues with Mum now rather than wait to inherit some of the farm after her death.
259.I decided to again attempt to negotiate a solution with Mum and instructed Young & Young [solicitors] to write to Mum about meeting to resolve the farm issues.
260.On the 26^th September 2010 I handed Mum a letter from [the son's solicitors] setting out the basis of my claim for the farming land pursuant to the Inheritance (Family and Dependants Provision) Act 1972 (WA) and in equity (by way of constructive trust, estoppel and unconscionable conduct).
[32] Appellant's first affidavit, pars 258 ‑ 260; GB 37.
The content of the advice was not disclosed in the evidence before the master, but the master inferred that the advice referred to the existence of time limits and the need to make an application under the relevant legislation in relation to the father's estate.[33] The letter from Young & Young, solicitors, to the mother dated 4 September 2010 concluded in the following terms:[34]
In light of the above, our client has potential claims to farmland which was owned by his late father in equity (by way of constructive trust, estoppel and unconscionable conduct) and pursuant to the Inheritance (Family and Dependants Provision) Act 1972 (WA). We encourage you to obtain independent legal advice in relation to our client's claims, and to attend an informal conference with us for the purpose of determining whether any agreement can be reached without the need for our client to commence Court proceedings.
We ask that you respond to us within 14 days of receipt of this letter, to avoid the need for our client to take other steps to protect his claims to the farmland.
Our client is keen not to commence legal proceedings, primarily because he wishes to retain a mother/son relationship with you and does not wish to divide the family. However, he feels that he had endeavoured to discuss these issues with you and that you have not given serious consideration to his position and claims, nor to the intention of your late husband or his promises and inducements made to our client who, like his father, has a genuine love of farming the family farm.
[33] Primary decision [15].
[34] Annexure 'SW‑12' to the appellant's first affidavit; supplementary GB 7.

In September 2010, following this letter, angry words were exchanged and the son was told by his mother to leave the farm.[35]
[35] Appellant's first affidavit, pars 265 - 268; GB 37 - 38; respondent's affidavit, par 39; GB 230.
There was a mediation conference on 13 December 2010 which failed to resolve the matter.[36]
[36] Primary decision [18]; appellant's first affidavit, pars 272 - 273; GB 38.
The son's evidence in that regard was:[37]
276.I spoke to [the accountant] on the telephone about the advice that [the solicitor] gave me especially about whether or not to commence legal proceedings.
277.[The accountant] told me to get a barrister's opinion about the case before I started legal proceedings.
278.I had been told by [the solicitor] that commencing legal proceedings could cost between $50,000 to $70,000.
279.I did not have that amount of money in savings or access to this kind of money through a loan at that time to do anymore about this.
…
281.I decided to wait and see if something would change, because inevitably with Mum things would always change and succession planning would come back on her agenda because she knew she couldn't run the farm without me, … I thought that it was likely that she would come back to me to sort things out.
[37] Appellant's first affidavit, pars 276 ‑ 279, 281; GB 38 - 39.
On 16 December 2010, Young & Young sent an email to the son's accountant, with a copy to the son, in relation to legal costs. The email included the following:[38]
I should mention also that we are required by our Professional Conduct Rules to make detailed costs disclosure to [the son] and, where costs exceed $1500.00, to obtain the client's authorisation to our fees by a signed Costs Agreement setting out the basis of the fees we charge. Part of that involves giving cost estimates for court action - which is difficult to do other than in a general manner given that cost is directly relevant to the length of the court process. As a general statement, Supreme Court actions might fall within a costs range of $50,000 to $70,000 plus GST and disbursements, and that is the sort of figure [the son] will need to consider.
If [the son] wins the court action, the other party would usually be ordered to pay about half of his legal costs. If [the son] lost, he would probably be required to pay about half of the other party's costs.
If the court action was particularly difficult or long or involved many interim disputes, the costs would likely be higher.
As a first step, I would encourage a client to get a brief opinion from a barrister as a first step, regardless of the cost estimate I give. The merits of the action and any evidentiary difficulties are the precursor to deciding what to do.
It also has to be remembered that most court actions settle before trial, and parties are encouraged by the court to make commercial settlement offers (having regard to the cost and risk of legal action).
[38] This email was tendered by the appellant at the hearing of the appeal, again in relation to any re‑exercise of discretion by this court. It became exhibit 2: appeal ts 19.
In the first half of 2011, the son obtained farming work elsewhere and entered into a partnership known as Yornup Farming Company. He also started an agricultural contracting business.[39] The business produced a very modest net income.[40]
[39] Appellant's first affidavit, pars 283 ‑ 289; GB 39 ‑ 40.
[40] Annexure 'SW‑5' to the appellant's affidavit, 22 March 2016 (appellant's second affidavit); GB 199 - 200.
In June 2012, the mother rekindled discussions about the son returning to the farm, running the farming business and ultimately becoming the owner of the farms.[41] On 20 June 2012, the mother emailed the son asking:[42]
Would you be willing to meet with me and Sian so that we could start work on becoming a family again? I look forward to hearing from you.
love,
Mum
[41] Primary decision [18].
[42] Annexure 'GMW3' to the respondent's affidavit; supplementary GB 88.
The son replied to the effect that 'that would be good'.[43]
[43] Annexure 'GMW3' to the respondent's affidavit; supplementary GB 88.
Communications between the mother and the son commenced and continued up to and including December 2012 with the assistance of another accountant.[44] The accountant wrote an email to the mother, with a copy to the son, on 29 November 2012, in terms including the following:[45]
I have meet [sic] with [the mother] twice and I am now clear as to what [the mother's] wishes are.
Broadly she wishes to let go of all management of the Farm business. [The mother] also wants to be self‑funded in retirement. This will be achieved through her receiving Lease Income from the Farm.
She is willing to provide [the son] with some Financial Accommodation in the form of lower than market Farm Lease and Venders [sic] Terms on the farming assets excluding the land.
At the expiry of three years [the mother is] to sell progressively the Farm to [the son]. [The son] will not need to pay for the portion he would receive in [the mother's] Estate. By way of example if he was to buy 100 hectares he would pay 50% of the market value to [the mother] for this land. During this three year period [the son] will need to show cash surpluses as well as show he is trading profitably. Without profit [the son] will not be able to buy the Farm.
[The mother] will retain all the rights to income under the current WAPRES Lease Agreement.
Sian and [the mother] will have the right to occupy the houses they currently reside in.
Allowance will need to be made in [the mother's] Will to ensure Sian receives a fair share of the Estate. [The mother] wishes for Sian and [the son] to receive 50% of her estate each. You would need to agree now on which assets will go where to achieve this split. Given that is [sic] appears [the son] is more driven to go farming Sian would receive her entitlement through non‑farm assets.
[44] Appellant's first affidavit, pars 317 - 373; GB 42 - 47.
[45] Annexure 'SW‑17' to the appellant's first affidavit; supplementary GB 13.
On the son's understanding, he and his mother reached an agreement in December 2012 which would result in him owning the farmland capable of being farmed after a three‑year period.[46] The alleged agreement is referred to in more detail in [42] ‑ [46] below. At this point, it is sufficient to observe that, according to the son, he was given an option to purchase the farm after leasing it for three years. The purchase price was to be 50% of the market value of the land purchased, apparently to reflect the desire attributed to the mother to the effect that her two children should share her estate. It is significant to note that on the son's understanding, an option to acquire the farming land for 50% of its market value gave him all that he might expect from a successful application under the Act, and probably more, and, in effect, put him in the position in which he would have been if half the farm had been left to him by his father.
[46] Primary decision [18].
In March 2013, the mother arranged for the transfer of two lots of the farmland to the son, and the son subsequently took a lease of the remainder of the farm commencing on 1 March 2013.[47]
[47] Appellant's first affidavit, pars 376 ‑ 379; GB 47.
The son borrowed $300,000 pursuant to a line of credit from the Commonwealth Bank for these purposes.[48] The son subsequently paid his mother an amount of $102,453.48 on 9 August 2013, $99,000 on 1 March 2014 and $99,500 on 1 March 2015.[49]
[48] Appellant's first affidavit, pars 380 ‑ 381; GB 47.
[49] Appellant's first affidavit, pars 383, 387 and 409; GB 48, 50.
In October 2015, the son purchased another property, in Chowerup, with 550 acres of arable land.[50]
[50] Appellant's second affidavit, par 8; GB 191; appellant's first affidavit par 5(a); GB 15.
In late 2015/early 2016, a dispute emerged as to whether a binding agreement had been reached in December 2012 under which the son was given an option to purchase the remainder of the farm at half its market value. On 22 December 2015, the son's accountant wrote to the mother stating, in effect, that the son was exercising his option to purchase the farm at 50% of the market value. The mother denied the grant of an option.[51]
[51] Appellant's first affidavit, pars 458 ‑ 460, 463; GB 55.
The son stated in his evidence:[52]
I did not take legal action against my mother or Dad's estate between 17 December 2012 to [February 2016], because until January 2016 I understood that I had an agreement with my mother that resolved the issues concerning Dad's estate. However, Mum is now denying that agreement.
[52] Appellant's first affidavit, par 463; GB 55.
In about February 2016, the son commenced proceedings against the mother to enforce the (alleged) exercise of the option pursuant to the agreement allegedly reached in December 2012.[53] Pursuant to an originating summons filed 19 February 2016, Kenneth Martin J made interlocutory orders, by consent, restraining the mother from, in effect, interfering with the son's access to the land and the farming operations on the land.[54] At about the same time, the son commenced the application under the Act to extend time. It is reasonable to infer that the application to extend time was made against the contingency of the failure of the proceedings for enforcement of the alleged option agreement.

The alleged agreement of December 2012 and the claim for specific performance

[53] Primary decision [19]; respondent's affidavit, par 58; GB 233.

[54] Annexure 'GMW9' to the respondent's affidavit; supplementary GB 101 - 102.

The son's evidence was to the effect that in or about December 2012 he reached an agreement with his mother along the following lines (in very broad terms):[55]
1.The mother would transfer to him two lots of farmland totalling around 300 acres for no specified consideration.
2.He would:
(a)lease the remainder of the farm (2,100 acres) for three years;
(b)purchase from the mother the farm's livestock and certain plant and equipment; and
(c)pay his mother approximately $300,000 over three years.
3.At the conclusion of the three‑year period, he would have an option to purchase the remainder of the farm for half of its market value, subject to the mother retaining for herself an income from an area of the farm the subject of the 'WAPRES lease' and continuing to use the homestead, and subject to Sian's right to live in the farm cottage.
[55] Appellant's first affidavit, pars 338 - 374; GB 44 - 47, 124 - 126.
In general terms, the mother's evidence was that she leased the farm and equipment to the son on 1 March 2013, and she transferred two of the lots to him to enable him to obtain a working farm mortgage. The mother denies making any agreement in December 2012, and says that she did not agree to grant the son an option to purchase the farm, or any part of it.[56] Amongst other things, the mother refers to an email dated 27 February 2013 from the mother to the accountant, copied to the son, in which she referred to the transfer of the two titles, and continued, '[t]here is no deal in writing about anything to date, eg lease, stock and plant. [The son] and I seem to be carrying on farming operations amicably at this stage'.[57]
[56] Respondent's affidavit, pars 52 - 57; GB 232 - 233.
[57] Annexure 'GMW7' to the respondent's affidavit; supplementary GB 94.
The mother said, in effect, that around the time of the discussions with the son regarding the transfer of the two lots, she was conscious that there had been no challenge to the will. She said that had she not received the entirety of the farm under the will, and had she known that the son was going to raise an issue about the farm having been left to her under the will, she would not have transferred the two lots to the son.[58]
[58] Respondent's affidavit, par 57; GB 233.
The agreement alleged by the son, in the terms alleged by the son (including the option), will be referred to in these reasons as the 'December 2012 agreement'. It is evident that the son held a genuine belief as to the existence and enforceability of the December 2012 agreement. He commenced proceedings for specific performance of the alleged option in early 2016, shortly after he was informed that the mother disputed the December 2012 agreement, and made the application for an extension of time within which to commence proceedings under the Act at the same time. On the materials before this court, it may be accepted for present purposes that the son has a reasonably arguable claim in respect of the alleged option. The mother did not contend otherwise in this appeal.[59] That is not to imply, of course, that this court has reached any concluded view as to the existence or terms of the alleged agreement.
[59] At appeal ts 39, senior counsel for the mother said that it was not contended that the son did not have a reasonably held, subjective, view that an agreement had been reached in December 2012, as alleged.
The son proposed that the proceedings for specific performance be heard in tandem with his claim under the Act, if leave is given to extend the time for making a claim under the Act.[60]
[60] Appeal ts 8 - 9.

Relevant provisions of the Act

Sections 6 and 7 of the Act

Section 6(1) of the Act provides:
6.Court's powers to order deceased's estate to provide for s 7 applicant
(1)If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
Section 7(1)(c), (2) and (3) provide:
7.Who can apply for provision from deceased's estate
(1)An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons -
…
(c)a child of the deceased living at the date of the death of the deceased, or born within 10 months after the deceased's death;
…
(2)No application under subsection (1) shall be heard by the Court unless -
(a)the application is made within 6 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)A motion for leave to file out of time may be made at any time notwithstanding that the period specified in subsection (2)(a) has expired. (emphasis added)
The Act also contains provisions relating to the circumstance where the estate has been distributed: s 8 and s 9.
Section 8 provides:
8.Orders after distribution of estate
(1)On an application for an order under this Act, the Court may make an order under section 65 of the Trustees Act 1962, in lieu of an order under this Act, in any case where the estate of the deceased, or part thereof, has been distributed among the persons entitled under the will or intestacy.
(2)Where the Court, in exercise of the power conferred by subsection (1), makes an order under section 65 of the Trustees Act 1962, it shall have the same powers in respect of that order as it has in respect of an order made under this Act.
Section 9 provides:
9.Order not to be inequitable as to assets already distributed
In determining whether, and in what way, provision ought to be made by an order, the Court shall have regard to the provisions of section 65(8) of the Trustees Act 1962.
Section 10 provides:
10.Order to take effect as codicil or as a devolution on intestacy
Every provision made by an order shall, subject to this Act, operate and take effect either as if the same had been made by a codicil to the will of the deceased executed immediately before his death or, in the case of intestacy, as a modification of the applicable rules of distribution.
Section 65 of the Trustees Act 1962 (WA) (Trustees Act), referred to in s 8 and s 9 of the Act, provides, relevantly for present purposes, as follows:
65.Deceased estate, claims made after distribution of, tracing, following assets
(1)This section applies where a trustee has distributed any assets forming part of the estate of a deceased person or subject to a trust, and there is nothing in any Act to prevent the distribution from being disturbed.
(2)Where this section applies, the Court may make an order on a claim, being -
(a)an application under the Family Provision Act 1972; or
…
any of which application or claims are, hereinafter in this section, called the claim.
(3)An order under subsection (2) may provide that -
(a)any person to whom any assets, to which the section applies, were distributed, or his personal representative, shall pay to the person making the claim or to the trustee a sum not exceeding the value of those assets; or
(b)any person, who has received, otherwise than in good faith and for valuable consideration, any interest in any assets, to which this section applies, from the person to whom they were distributed or his personal representative, shall pay to the person making the claim or to the trustee a sum not exceeding the value of that interest;
and for the purpose of giving effect to that order the Court may make such further order as it thinks fit.
(4)The remedies given to any person by this section are in addition to all other rights and remedies (if any) available to that person, and nothing, other than the provisions of subsection (7) and (8), restricts those other rights and remedies.
(5)Subject to the provisions of subsection (6), an order under this section shall not be made by the Court -
(a)where the claim is an application for an order under the Family Provision Act 1972, unless -
(i)the application is made within the period specified in section 7(2)(a) of that Act; or
(ii)leave to file out of time has been given under section 7(2)(b) of that Act;
…
(8)Where a trustee has made a distribution of any assets forming part of the estate of a deceased person or subject to a trust, relief (whether under this section or in equity or otherwise) against any person other than the trustee or in respect of any interest of any such person in any assets so distributed and in any money or property into which they have been converted, shall be denied, wholly or in part, if the person from whom relief is sought received the assets or interest in good faith and has so altered his position in reliance on his having an indefeasible interest in the assets or interest, that, in the opinion of the Court, having regard to all possible implications in respect of the trustee and other persons, it is inequitable to grant relief or to grant relief in full. (emphasis added)

Principles - application to extend time

In Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart,[61] Steytler P (Pullin & Buss JJA agreeing) said of the time limit imposed by s 7(2) of the Act:[62]
The time limit provided by s 7(2)(a) is there for obvious reasons. There is a public interest in the prompt administration of estates. Six months is ordinarily more than long enough for a potential claimant to decide whether to bring an application for provision under s 6(1) of the Act. After the lapse of that time, beneficiaries and others who may be affected should ordinarily be entitled to assume that there will be no challenge to the will.
In Re Salmon, Deceased [1981] Ch 167, Megarry VC, speaking of a similar time limit, said (175):
'[T]he time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus, I think, no triviality: the applicant must make out a substantial case for it being just and proper for the Court to exercise its statutory discretion to extend the time.'
This passage has been quoted on a number of occasions: see, for example, Clayton v Aust (1993) 9 WAR 364, 366 (Malcolm CJ, Rowland & Franklyn JJ concurring) … Young v Kestel [2003] WASCA 190 [79] …
[61] Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14.
[62] Andre [38] ‑ [39].

In Andre, Steytler P observed:[63]
Section 7(2)(b) of the Act provides a broad discretion to extend time, requiring only satisfaction that 'the justice of the case' requires a grant of leave. Where a broad discretion of that kind is conferred, a court should be careful not to confine it by resort to considerations that are not found expressly or by implication in the words of the statute. However, it is clear that the discretion is one that must be exercised judicially, in accordance with what is just, and that 'the onus lies on the plaintiff to establish sufficient grounds for taking the case out of the general rule, and depriving those who are protected by it of its benefits': Salmon (175) (Megarry VC); Clayton (366).
It is also settled that the strength of the case of an applicant for an extension of time is a relevant consideration. In a number of cases it has been said to be relevant to ask whether the applicant has 'an arguable case': Clayton (367 - 368) …
It seems plain enough that, if there is no arguable case on the merits, the application will be doomed from the outset and the justice of the case will not require that there be a grant of leave. However, when there is an arguable case the strength of that case may be an important factor (although still only one factor to be considered in the overall exercise of a wide discretion). (references omitted)
[63] Andre [40] ‑ [42].
In Clayton v Aust,[64] the Full Court, with reference to the decision of Megarry VC in Re Salmon (Dec),[65] accepted that in an application to extend time in this context, the court would at least ordinarily have regard to the following, non‑exhaustive, guidelines:
1.The discretion is unfettered. No restrictions or requirements of any kind are laid down in the Act. The discretion is to be exercised judicially and in accordance with what is just and proper.[66]
2.The onus lies on the applicant to establish sufficient grounds for taking the case out of the general rule, and depriving those who are protected by it of its benefits. The time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by the rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus no triviality. The applicant must make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time.[67]
3.It is material to consider how promptly and in what circumstances the applicant seeks the permission of the court after the time limit has expired. The whole of the circumstances must be looked at including the reasons for delay and the promptitude with which the applicant gave warning to the defendants of the proposed application.[68]
4.If negotiations have been commenced within the time limit, and time has run out while the negotiations are proceeding, this is likely to encourage the court to extend the time. Negotiations commenced after the time limit might also aid the applicant, at any rate if the defendants have not, in relation to those negotiations, taken the point that time has expired.[69]
5.It is relevant to consider whether or not the estate had been distributed before a claim under the Act had been made or notified. For most people, there is a real difference between 'the bird in the hand and the bird in the bush'. In addition, of course, the beneficiaries are more likely to have changed their position in reliance on the benefaction if they have actually received it than if it lies merely in prospect.[70]
6.It is relevant to consider whether a refusal to extend the time would leave the claimant without redress against anybody.[71]
[64] Clayton v Aust (1993) 9 WAR 364.
[65] Re Salmon (Dec) [1981] Ch 167, see Clayton (366 ‑ 367).
[66] Clayton (366).
[67] Clayton (366 - 367).
[68] Clayton (367).
[69] Clayton (367).
[70] Clayton (367).
[71] Clayton (367).
As Mitchell J observed in Craig v Craig,[72] in relation to the second of those guidelines, in Clayton:[73]
The factor which Malcolm CJ saw as relevant was 'has the applicant got an arguable case on the merits?'.
In Clayton the master had concluded that the case of the appellant was 'weak on the merits or barely arguable'. This conclusion was reached on the basis that a conflict of evidence on affidavits was likely to be resolved against the appellant in that case. The master was found to have erred in adopting this approach in a situation where the evidence in the competing affidavits had not been tested by cross-examination, and in approaching the matter on the basis that the appellant's case was weak or barely arguable. (footnote omitted)
[72] Craig v Craig [2015] WASC 109.
[73] Craig [34] - [35].
Moreover, as Steytler P observed in Andre, where there is an arguable case, the strength of that case may be an important factor to be considered in the overall exercise of discretion.[74] However, there will often be cases where it is difficult to undertake a more precise assessment of the merits other than to form an overall conclusion that the case is arguable. That is because the application is conventionally determined on the papers, and the court is not in a position to resolve contested evidentiary matters concerning the underlying merits of any claim.[75] There may, of course, be some cases where the underlying material facts are uncontested, or where admissions have been made, which enable the court to assess with some degree of confidence the strength of the applicant's case. Absent such matters, and where the applicant's own affidavit evidence is not inherently implausible or contrary to the undisputed facts and points to the existence of an arguable claim, the court will often be left in the position where it can do no more than conclude that the applicant has demonstrated an arguable case on the merits.
[74] Andre [42]. To the extent that the court (EM Heenan J, McLure J agreeing) in Young v Kestel (As Executor of the Will and Estate of Douglas Tate Young (Dec)) [2003] WASCA 190 [79] suggested otherwise, the statement cannot, with respect, be accepted as correct.
[75] Clayton (364 ‑ 370).
It should be added that the above observations are directed only to the consideration of whether the applicant has an arguable claim under s 6(1) of the Act on the merits. In relation to the court's consideration of matters such as the nature, extent and reasons for the delay, the court will need to make findings of fact about those matters on the evidence presented.
The claimant's lack of knowledge of the size and extent of the testator's estate, which is not caused or contributed to by any fault of the claimant, may be a factor favourable to the applicant in the exercise of discretion to extend time: Re Nassim (Dec).[76] In that case, the trustees of the estate had, in effect, concealed those matters from the applicant.[77] Other matters that have weighed in favour of the applicant in relation to the exercise of discretion to extend time in a similar context include a reasonable misapprehension by the claimant as to the extent of her interest under the will,[78] and the claimant's financial inability to undertake proceedings.[79]
[76] Re Nassim (Dec) [1984] VR 51, 57.
[77] Re Nassim (53 ‑ 54).
[78] Re Marland [1957] VR 338, 340; Kestel [80].
[79] Coffey v Bennett [1961] VR 264, 269 ‑ 270; Kestel [80]; see also Easterbrook v Young [1977] HCA 16; (1977) 136 CLR 308, 311 - 312, 324 - 325.
In Neill v Nott,[80] in relation to an application to extend time for four months, the High Court referred to the claimant's mental illness and poor financial estate as prima facie sufficient to entitle him to a 'brief indulgence', unless it appeared that the administration of the estate would be prejudiced by an extension of time.[81]
[80] Neill v Nott [1994] HCA 23; (1994) 121 ALR 148.
[81] Neill (151), read with (150).
A claimant's ignorance of their rights under the legislation has also been regarded, in appropriate circumstances, as a factor tending in favour of the exercise of discretion.[82] In Re Walker (Dec), the court referred to the claimant's ignorance of his rights, his youth and his inexperience in rejecting a submission that the claimant should have taken positive steps to ascertain his rights at an earlier point in time.[83] In that case, Lush J also observed:[84]
In deciding whether ignorance of his rights makes the delay excusable, it is necessary to ask the question whether, if the applicant had known of his rights, he would have taken any action.
[82] Re Walker (Dec) [1967] VR 890, 891 ‑ 892; Estate of Barry (Dec); Carcosta v Executive Trustee and Agency Co South Australia (1974) 9 SASR 439, 445; Re Guskett [1947] VLR 212, 215; Coates v National Trustees, Executors and Agency Company Ltd [1956] HCA 23; (1956) 95 CLR 494, 505; Kestel [80].
[83] Re Walker (891).
[84] Re Walker (891).
On the other hand, where the claimant has been aware of his or her rights under the legislation, but merely unaware of the time limits, this has been held not, in itself, to be a sufficient ground for granting an extension of time.[85] Also, the discretion has not been exercised in favour of a claimant who, knowing of her rights, chose for some reason satisfactory to her at the time not to exercise them, and some years afterwards, when her circumstances changed, sought an extension of time.[86]
[85] Re Guskett (215); Re Barrot [1953] VLR 308, 314.
[86] Re Guskett (215), a case where the claimant had made, and discontinued, an application for relief some three years earlier, and relied on a change in her financial circumstances occurring after the discontinuance of her first application.

The appeal

Grounds of appeal

There are nine grounds of appeal to the following effect:
1.The master erred in law in that having found the son had an arguable case the master then:
(a)limited his consideration of the strength of the son's case as to whether it was an arguable case; and
(b)failed to have regard to a relevant consideration and take into account the strength of the son's claim as a material factor when considering the justice of the case for the purpose of s 7(2)(b) of the Act.
2.The master erred in fact in finding that the son knew that he could make a claim under the Act and knew the time limits applied to making any claim at least from September/October 2009.
3.The master erred in fact in finding that there was no evidence as to the financial status of the son after December 2010, and erred in law in failing to have regard to a relevant consideration, in that the master failed to consider the son's financial inability as a reason why he did not pursue legal proceedings after December 2010.
4.The master erred in fact in finding that in July 2013, the son had the financial ability to fund legal proceedings from borrowed funds and erred in law by failing to have regard to a relevant consideration that funds he borrowed were for the specific purpose of performing an agreement made between the son and the widow which the son understood would resolve the need for legal proceedings.
5.The master erred in law and in fact in:
(a)finding that negotiations between the parties in 2012 were not causally relevant to the son's delay in the commencement of legal proceedings; and
(b)failing to have regard to a relevant consideration in that the son considered that the agreement he made with the mother in 2012 addressed the need to commence legal proceedings against his late father's estate and thereby explaining three years of delay.
6.The master erred:
(a)in fact and law by having regard to an irrelevant consideration, in particular assuming that there would become a need to unwind a farming business conducted by the widow and there may be difficulty in doing so, if leave were granted; and
(b)in fact and law in failing to have regard to relevant considerations and finding that:
(i)the estate was distributed solely to the widow;
(ii)the estate was of an estimated value of $7 million and was adequate in size to make provision for the son despite the widow having operated the farming business until March 2013;
(iii)the widow had ceased operating the farming business in March 2013 and the son had agreed to purchase the livestock and some of the machinery assets of that business from that time; and
(c)in law in failing to have regard to this court's power to apply s 9 of the Act and s 65(5) of the Trustees Act, in making orders under the said Act.
7.The master erred in law in failing to have regard to a relevant consideration, in particular that no evidence of any disadvantage to the widow (in her capacity as executor or beneficiary) would arise if the son were granted leave under s 7(2)(b) of the Act.
8.The master erred in law by failing to have regard to a relevant consideration, being the son's evidence that he wanted to avoid legal proceedings to preserve the relationship with his mother.
9.Having regard to grounds 1 ‑ 8 and the affidavit material relied on by the son, the master erred in fact and law in finding that the son's explanation for delay was inadequate.

The notice of contention

The mother has also filed a notice of contention to the effect that the master should have found that it would not be just to permit an extension of time as:
1.The mother would be prejudiced as she gifted 288 acres of land to the son in circumstances where she could reasonably have expected that there would not be a challenge to the will and would not otherwise have made that gift.
2.In December 2012, the son made a conscious and fully‑informed decision not to seek an extension of time but rather accept a substantial gift of land from the mother and enter into an arrangement which he believed entitled him to purchase the majority of the land received by the mother at a greatly discounted price.
3.The application to extend time is made as insurance against the prospect that the course referred to in 2 above, which was chosen and adopted by the son, fully informed of his legal rights, is unsuccessful and his case against the mother to enforce his alleged entitlement to purchase the farmland is unsuccessful.

Appellate intervention

The relevant principles of appellate intervention in this context were outlined in Lewin v Desma Ann Kimpton as executor of the estate of Charles Howard Lewin:[87]
[87] Lewin v Desma Ann Kimpton as executor of the estate of Charles Howard Lewin [2014] WASCA 131 [37] ‑ [40].
In Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79, McLure JA (as her Honour then was) summarised the relevant principles as follows [36]:
In order to succeed in an appeal from a discretionary decision an appellant must establish that the primary judge has expressly or impliedly made a material error of fact or law: House v The King (1936) 55 CLR 499 at 505. Failure to give adequate weight, or giving too much weight, to a relevant consideration does not give rise to a relevant error unless the failure really amounts to a failure to exercise the discretion actually entrusted in the Court: Lovell v Lovell (1950) 81 CLR 513 at 519.
In House v The King [1936] HCA 40; (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred (504 - 505).
In Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, Latham CJ said:
In Storie v Storie it was considered by this Court that in effect no weight had been given to the claim of a parent as against a stranger to the custody of a child. The references in the various authorities on this matter to a failure to give sufficient weight to relevant considerations should not be understood in such a sense as to entitle an appellate tribunal to deal with an appeal from an order made in the exercise of a discretion in the same way as in the case of an appeal from any other order. If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v Wakefield) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. The words used by their Lordships in the House of Lords in this connection are not always easy to apply, but they ought not to be read as denying the long established principle (which, indeed, is expressly recognised in the cases in the House of Lords) that on an appeal from an order founded upon the exercise of a discretion the appellate tribunal has no right to substitute its discretion for the discretion entrusted to the primary tribunal (519). (footnotes omitted)
Wherever a discretion is to be exercised, minds may differ on the result: Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 539 - 540.

Merits of the grounds of appeal

Ground 1

In this matter, to the extent that the master was of the view that, as a matter of law, Clayton positively precluded an assessment of the merits in an appropriate case, beyond finding that the claim was arguable, the master was, with respect, in error (see [58] above). However when considering the son's claimed entitlement to provision under the Act, the master approached the matter on the basis that he should accept the son's evidence.[88] In the particular circumstances of this case, including the contested evidence, it was open to the master to conclude that the son's claim was arguable, without going on to attempt an assessment of whether the case was weak or strong. We would dismiss ground 1. No error, or at least no material error, has been shown.

Ground 2

[88] There was no suggestion that the son's evidence was inherently implausible or contrary to undisputed facts.

This ground alleges that the master erred in fact in finding that at least from September/October 2009 the son knew that he could make a claim under the Act and knew the time limits which applied to bringing any such claim.
The master's findings were that the son:
1.Had been advised by his accountant in October 2009 that he could challenge the deceased's will and that there were time limits.[89]
2.The son knew in October 2009 that he could challenge the deceased's will by legal proceedings.[90]
3.The son knew from at least September 2009 that 'he could make a claim and the [sic ‑ that] time limits applied to bringing any claim'.[91]
4.Any doubt about that must have been removed when he consulted solicitors in August 2010.[92]
[89] Primary decision [15].
[90] Primary decision [13].
[91] Primary decision [17].
[92] Primary decision [17].

The evidence on which the findings in 1 ‑ 3 above were made is contained in the passage of the son's affidavit quoted at [18] above. The son's senior counsel contends, in effect, that the son was using the past tense 'could have challenged' to convey the idea that he had been informed that there were rights that he had had in the past, associated with time limits, but those rights were now gone.[93]
[93] Appeal ts 16.
We do not accept that construction of the evidence. Those submissions focus on a few words in par 219 of the son's affidavit. Paragraphs 219 ‑ 221 of the son's affidavit (see [18] above) evidently deal with the one topic - the failure to take proceedings against the mother in the context of the events in 2009. Read together, their effect is that the son was told that there was then (in October 2009) a possibility that he could have challenged his father's will, but there were time limits and the cost of proceedings was significant. He did not, however, 'want to go to court' because he did not want to make the relationship with his mother any more strained, and he thought he could negotiate a solution in the form of a farm succession agreement. Moreover, he did not have the means to pursue legal proceedings or pay for legal advice.
Ground 2 should be dismissed.

Ground 3

The master's reasons included the following:[94]
[The son] was advised in December 2010 that it would cost between $50,000 and $70,000 to commence proceedings. He says he did not have the funds to commence those proceedings, although as pointed out by the [mother], there is no evidence as to his financial status at that time. In December 2012, he believed that he had an agreement with the [mother] concerning the [father's] estate. I will return [to] this last point later in these reasons. (emphasis added)
[94] Primary decision [13].
Whilst the master in that part of his reasons is addressing the son's financial position as at December 2010, when the reasons are read as a whole,[95] it is evident that the master found, in effect, that there was no evidence as to the son's financial status from at least December 2010 to December 2012.
[95] In particular, the master's finding that after the son had borrowed $300,000 he 'then' had the 'ability to fund proceedings': primary decision [16].
The finding of no evidence was incorrect. The son gave evidence as to his poor financial status from around December 2010 to at least December 2012.[96]
[96] Appellant's first affidavit, pars 129, 222, 255, 279 - 280; annexure 'SW‑5' of the appellant's second affidavit; GB 199 ‑ 201; annexure 'SW‑2' of the appellant's second affidavit; supplementary GB 36 - 42.
Ground 3 should be upheld.

Ground 4

The master said:[97]
On 22 July 2013, the [son] borrowed $300,000 from the Commonwealth Bank. He then had the ability to fund proceedings. Notwithstanding this he elected to take no action. There is no reason to suggest this was not a well-reasoned informed decision.
[97] Primary decision [16].
The mother contends that the master's 'observation is capable of encompassing a finding that [the son's] loan reflected a capacity to access funds that gave him the ability to fund litigation, whether or not the funds actually borrowed were to be used for that purpose'.[98]
[98] Respondent's written submissions, par 45; WB 35.
The mother's contention cannot be accepted. On a proper construction of the master's reasons, the master found, in effect, that the $300,000 loan was practically and legally available to be applied in the funding of litigation against the estate.
That finding was not open on the evidence. There was no evidence that the loan could lawfully have been applied for that purpose and, indeed, the evidence prima facie pointed to the contrary. The son annexed what he said was a true copy of the Commonwealth Bank letter of offer in relation to the finance.[99] That letter of offer described the facility as an 'AgriBusiness Line of Credit', provided for the purpose of 'working capital' and 'to be applied wholly or predominantly for business purposes or investment purposes other than investment in residential property'.[100] Prima facie those purposes would not encompass litigation funding. Moreover, the loan was not in any practical sense available for litigation funding at that stage. That is because the uncontroverted evidence was that the money had been borrowed for the purpose of operating the farm business and implementing the December 2012 agreement.[101]
[99] Appellant's first affidavit, par 381; GB 47.
[100] Annexure 'SW‑22' of the appellant's first affidavit; GB 127 ‑ 128, 131.
[101] Appellant's first affidavit, par 380; GB 47.
Ground 4 should be upheld.

Ground 5

The master said:[102]
In December 2012, [the son] believed that he had an agreement with [the mother] concerning the [father's] estate.
…
From about July 2012 to December 2012 the [son] and the [mother] engaged in a negotiation process with the assistance of an accountant. In December of 2012 an agreement was reached which the [son] understood would result in him owning the farmland capable of being farmed after a three year period.
…
[I]t does not seem to me the negotiations in 2012, which led to an agreement, are relevant. In any event, it is not suggested in the [son's] evidence he held off commencing proceedings under the Act because negotiations were taking place. Having said that, the fact that there were some negotiations does seem to me to be a factor albeit a factor of limited relevance in favour of granting the extension. (emphasis added)
[102] Primary decision [13], [18] - [19].
These matters appear to have contributed significantly to the master's conclusory finding that:[103]
The length of the delay and the failure of the [son] to adequately explain the delay are, in my view, overwhelming factors against a grant of an extension of time. (emphasis added)
[103] Primary decision [21].
The mother contends that the master's observations in [82] above are supportable by the fact that the son was not negotiating a compromise under the Act in 2012, but rather was negotiating for the right to buy the farm.[104] The mother further contends that this is a mere weighting issue.[105]
[104] Respondent's written submissions, par 49; WB 36.
[105] Respondent's written submissions, par 53; WB 37.
We would uphold ground 5 insofar as it alleges that the master failed to have regard to the December 2012 agreement as a consideration relevant to the period of delay between December 2012 and February 2016. It is not to the point that the negotiations were not directed, in terms, to a compromise under the Act. Negotiations to purchase the farmland, and any resulting agreement, could avoid the necessity for making a claim under the Act. This is not merely a weighting issue. The master was bound, by the principles of natural justice, to give genuine consideration to the son's explanation for the delay before finding that there was 'a failure … to adequately explain the delay'. The uncontroverted evidence was that the son took no steps under the Act in the (approximately) three‑year period prior to February 2016 because, on his understanding, he had reached an agreement in terms of the December 2012 agreement. As we have noted, the alleged agreement had the effect of placing him in the position in which he would have been had his father left half the farm to him, and provided a sound explanation for the delay between the time of the alleged agreement and the mother's renunciation of the alleged agreement, for reasons which will be developed below.
We would uphold ground 5 in this regard. It is unnecessary to consider other aspects of ground 5.

Grounds 6 and 7

These grounds deal, in general terms, with the contention that the master failed to take into account that the distribution of the estate, in the circumstances of this case, was not a factor which weighed against the grant of an extension of time. By these grounds, the son also contends, in substance, that the master erred in failing to recognise that there would be no prejudice to the mother if an extension of time were granted.
It is unnecessary to deal with these matters as separate grounds of appeal, in that they are bound up with a consideration of the respondent's notice of contention and issues arising on the re‑exercise of discretion by this court (having upheld grounds 3, 4 and 5) in the event that the notice of contention is dismissed.

Ground 8

In his submissions, the son contends that the master 'failed to adequately consider the fact that the [son] did not wish to sue his mother in circumstance [sic] where their relationship was already difficult'.[106] In substance, this merely alleges a weighting error. For that reason, the submission cannot be accepted as identifying appellable error. It should be dismissed.

Ground 9

[106] Appellant's written submissions, par 52; WB 19.

Ground 9 relies upon grounds 1 - 8. It is unnecessary to deal with it as a separate ground of appeal.

The notice of contention and this court's re‑exercise of discretion

This is an unusual case. Looking at it in the broad, in the period up to December 2012, at various points in time and with various levels of intensity, the parties were in discussions over succession planning involving the farming assets. The son believed that matters previously in dispute had been resolved by the December 2012 agreement. If he proves to be correct in that regard, he has no claim on the estate and no need for an extension of time.[107] If he fails, his otherwise arguable claim for provision under the Act will remain lost unless an extension of time is granted. Does the justice of the case require the grant of leave to extend time?
[107] See appeal ts 6, 8 - 9.
The delay in bringing proceedings under the Act may be examined more specifically by reference to three periods. The first is between April 2009 and September 2010, the second is between September 2010 and December 2012, and the third is between December 2012 and January 2016. The evidence, outlined in [9] - [46] above, indicates the following.
In the first period the son was, in the early part of that period, working on the farm following the father's death, and was still grieving over the loss of his father. The son knew that he had been left nothing in the will. He raised the topic of 'succession planning' in mid‑2009 with his mother, and his mother expressed some interest at that point. They attended a seminar on that topic in September 2009, but no agreement was reached. In October 2009, the son was on notice, from the accountant, that he may have a right to challenge the will but that any claim was subject to time limitations, and that the costs of legal proceedings were significant. In March 2010, the mother informed the son that he was out of time to challenge the will. As at October 2009, and through to September 2010, the son did not have the financial ability to institute proceedings and, in any event, he did not wish to put further strain on the relationship with his mother and thought that in due course, some farm succession agreement could be negotiated satisfactorily with his mother. There is a reasonable explanation for the delay in this first period.
As to the second period, the son, in August/September 2010, had obtained legal advice about his rights, including, it may be inferred, his right to claim under the Act and the relevant limitation period. He caused his solicitors to write to his mother asserting claims under the Act and under the general law but, at that point, had no funds to take the matter any further. The assertion of his rights led to an angry exchange between the mother and the son, and the son was told to leave the farm. There followed an informal mediation in December 2010, but the mediation did not resolve anything. The son started a new business elsewhere. He still lacked the means to commence proceedings under the Act and, despite the rift with his mother, remained of the view that, in due course, his mother would come back 'to sort things out'. The son's expectation in that regard was vindicated in that the mother rekindled discussions in June 2012 about succession planning for the farm. There was also a reasonable explanation for the delay in this second period.
Turning to the third period, the son's case is not put on the basis that he lacked the means in this period to institute proceedings under the Act.[108] However, the son held a genuine belief, on grounds capable of sustaining a reasonably arguable claim, that an enforceable agreement had been reached, in around December 2012, under which he had an option to purchase the farm for half its market value. It would have been prudent, in hindsight,[109] for the son to have arranged for the December 2012 agreement to be documented by a solicitor. Had that occurred, one of two things would likely have happened. One is that the mother would have refused to sign the document, and the current dispute would have emerged three years earlier than has in fact occurred. Alternatively, it would have been signed and the current dispute would have been foreclosed.
[108] Appeal ts 21.
[109] Particularly in light of the mother's email of 27 February 2013 to the accountant, copied to the son, to the effect that there was 'no deal in writing' at that stage but farming operations were being carried on 'amicably'.
Nevertheless, looking at the matter prospectively as at December 2012/early 2013, given the familial relationship between the parties and having regard to the fact that the past estrangement appears to have been largely overcome, or at least patched up, by the end of 2012/early 2013, it was not unreasonable for the son not to have arranged for the December 2012 agreement to be formally documented. Having regard to his belief as to the existence and terms of the December 2012 agreement, it was, moreover, reasonable at that point in time through to early 2016, for the son not to commence proceedings under the Act, including for an extension of time.
The fact that the estate has been distributed is no legal impediment in itself to a claim under the Act: s 8 of the Act, s 65 of the Trustees Act.
Apart from the two lots transferred in 2013, which represent approximately 1/8 or 12.5% of the total farmland, the great majority of the farmland has been retained by the mother, and the principal assets of the estate continue to be held by the mother, in substance, just as they were in April 2009, when the period under s 7(2)(a) of the Act expired. The mother nevertheless contends that she has been prejudiced by a change of position.
The mother's contentions as to prejudice are summarised in her notice of contention, referred to in [65] above. In substance, the mother contends that she has changed her position in that she 'gifted' two of the farming lots to the son in early 2013 in circumstances where she would reasonably have expected that there would not be a challenge to the will, and she would not otherwise have made the 'gift'.
It may be accepted, for present purposes, that the mother would not have transferred the two lots to the son had she known that the son would make a claim on the estate in the future. Again, with hindsight, it may have been prudent, from the mother's perspective, for an agreement to that effect to have been formally documented before transferring the lots to the son, if that were her aim.
Nevertheless, it is only if the son fails in the other proceedings to establish the December 2012 agreement that the transfer of the two lots could legally be characterised as a gift. It is not true that the son made a fully informed decision not to apply to extend time under the Act and, instead, to accept the two lots as a gift in the belief that he would subsequently purchase the farmland at a discounted price. On the son's case, the two lots, albeit transferred for no specific consideration, were part of an overall agreement by which he undertook leasing and other obligations and was given an option to purchase. Looked at prospectively from the son's point of view in December 2012, the son obtained the lots not as a volunteer, but as part of an overall farm succession agreement. Had he seen a solicitor at the time, and it emerged that the mother's attitude was that there was no agreement, it is to be inferred that he would have commenced proceedings at that point. However, neither party took legal advice at the time, and the son's decision not to do so was not unreasonable in all the particular circumstances of this case.
To the extent that the grant of the leasehold for three years to the son and the transfer of the two lots would mean that it would be inequitable to grant the son relief or to grant him relief in full, the son may fail, wholly or in part, in any proceedings under the Act: s 9 of the Act, s 65(8) of the Trustees Act. However, on the evidence before this court, it cannot be said that these matters are likely to loom so large that the son's claim on that account would be 'doomed from the outset',[110] so that the justice of the case does not require the grant of leave.
[110] Andre [42].
Senior counsel for the mother also contended that there would be no injustice if the application to extend time was dismissed because the son's real complaint is that, based on representations made by the mother in around December 2012, he 'gave up' his rights under the Act, and that the proper remedy for that is to bring separate proceedings 'for an estoppel by reason of the assumption that was reasonably induced'.[111] However, that submission begs the question of whether the son 'gave up' his rights under the Act in December 2012. He did not if the court grants an extension of time under s 7(2). Moreover, the kinds of matters relevant to the prosecution of a separate estoppel claim may, at least ordinarily, properly be taken into account under s 7(2) of the Act, and even if the pursuit of separate proceedings for an estoppel were not an irrelevant consideration on the proper construction of s 7(2),[112] it is a consideration which would ordinarily carry little or no real weight.
[111] Appeal ts 42.
[112] cf Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40.
Having regard to all the particular circumstances of this case, we are satisfied that, despite the lengthy delay involved, on balance, the justice of the case requires the grant of leave under s 7(2)(b) of the Act. As foreshadowed by senior counsel for the appellant, the son's claim under the Act should be run in tandem with the other proceedings on foot in relation to the specific performance of the December 2012 agreement.
For the foregoing reasons, we would dismiss the notice of contention and re‑exercise the discretion under s 7(2)(b) of the Act in favour of the appellant.

Conclusion

It is in the interests of justice for leave to appeal to be granted.[113] The appeal should be allowed.
[113] As to the grant of leave to appeal, see, for example, Allmark v Mossensons [2006] WASCA 127 [26].