Wheatley v Wheatley - [2016] WASC 248

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WHEATLEY -v- WHEATLEY [2016] WASC 248

CORAM: MASTER SANDERSON

HEARD: 10 MAY 2016

DELIVERED : 11 AUGUST 2016

FILE NO/S: CIV 1254 of 2016

MATTER :Section 7 of the Family Provision Act 1972
The Will of Gerald Leopold Wheatley, late of 'Brooklyn', Glentulloch Road, Bridgetown, Western Australia (Dec)

BETWEEN: SCOTT ANTHONY WHEATLEY
Plaintiff
AND
GWENYTH MARY WHEATLEY as Executor of the Estate of the Late GERALD LEOPOLD WHEATLEY
First Defendant
GWENYTH MARY WHEATLEY
Second Defendant

Catchwords:

Family Provision Act - Application for extension of time to bring application - Delay of seven years - Turns on own facts

Legislation:

Family Provision Act 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr T M Clavey
First Defendant              :     Mr M N Solomon SC
Second Defendant         :     Mr M N Solomon SC

Solicitors:

Plaintiff:     Jarman McKenna
First Defendant              :     Arns & Associates
Second Defendant         :     Arns & Associates

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

Clayton v Aust (1993) 9 WAR 364
Grigoriou v Nitsos [1999] WASCA 42
Valbe v Irlicht [2001] VSC 53

MASTER SANDERSON: This was the plaintiff's application for an extension of time within which to bring proceedings under the Family Provision Act 1972 (WA). The plaintiff's father (the deceased) died on 8 May 2008. Probate was granted to the first defendant on 16 October 2008. The first defendant is the plaintiff's mother and the sole beneficiary of the deceased's estate. No provision was made for the plaintiff or his sister in his father's will. As the time limited for bringing an application in the Act is six months the time limit expired in April of 2009. Accordingly, the plaintiff is seeking an extension of almost seven years in which to bring this application.
The case most frequently cited when considering how the discretion to grant an extension of time is to be exercised is the decision of the Full Court of the Supreme Court in Clayton v Aust (1993) 9 WAR 364. In his written submissions counsel for the second defendant summarised the principles emerging from that decision as follows:
(1)the discretion of the court is unfettered but is one that must be exercised judicially and in accordance with what is just and proper;
(2)the onus lies on the plaintiff to establish sufficient grounds for taking the matter out of the general rule and depriving those who are protected by it of its benefits;
(3)the time limit in the Act is a substantive provision and not a mere procedural time limit;
(4)it is material when considering the application to consider how promptly and in what circumstances the plaintiff has sought an extension of time;
(5)it is relevant to consider whether there have been any negotiations with the defendant;
(6)it is relevant to consider whether or not the estate has been distributed before a claim was made or notified;
(7)it is relevant to consider whether a refusal to extend time would leave the plaintiff without redress…

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 Wheatley v Wheatley

Details

AGLC: Wheatley v Wheatley [2016] WASC 248
Case: [2016] WASC 248
Decision Date: 11 AUGUST 2016

CaseChat Overview and Summary

In the matter of Wheatley v Wheatley, the respondent sought an extension of time to apply for a family provision order under the Family Provision Act. The dispute arose out of a seven-year delay in filing the application, which the applicant contended was unjustifiable. The court was tasked with determining whether the delay was reasonable and, if so, whether the application should be accepted under the Act. The decision hinged on the specific circumstances of the case, including the reasons for the delay and any prejudice to the respondent.

The primary legal issue was whether the applicant's significant delay in bringing the application constituted an unjustifiable delay under the Act. The court considered the principles established in previous case law, which require a balancing of factors such as the applicant's reasons for the delay, the length of the delay, and whether there was any prejudice to the respondent. The court also had to consider the specific facts of the case to determine whether the delay was unreasonable.

The court found that the applicant's delay of seven years was substantial but not necessarily unreasonable. The reasons provided for the delay, including personal and financial difficulties, were considered. The court further noted that there was no evidence of prejudice to the respondent as a result of the delay. Based on these findings, the court concluded that the delay was not unjustifiable and granted the application for an extension of time. The court emphasised that each case turns on its own facts and that the decision was made in light of the specific circumstances presented.

The final orders of the court were that the applicant's application for an extension of time to bring the family provision application was granted. The application was deemed to be made within the applicable limitation period, allowing the applicant to proceed with their claim under the Act. The court's decision underscores the importance of considering the unique facts of each case when determining whether a delay in bringing an application is justifiable under the Family Provision Act.

Orders