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 against anybody; and
(8)it is relevant to consider whether the plaintiff has an arguable case on the merits but no detailed examination of the plaintiff's claim is warranted.
Arising from the decision of the Full Court in Grigoriou v Nitsos [1999] WASCA 42 a further criteria can be added. If it is established there is a potential cause of action against solicitors who had failed to act promptly and the applicant was blameless because she attempted to drive the application forward then an extension of time is warranted.
While the principles emerging from Clayton's case act as a guide they are not to be regarded as a code. The Court of Appeal has consistently said the ultimate question is what is in the interests of justice. That point was made with some force in the Nitsos decision.
In his written submissions counsel for the plaintiff set out the principles in a rather more expansive fashion: See par 11 of the written submissions. In my view, counsel overstated the position. By way of example, counsel asserted the fact the plaintiff has a strong claim is a factor that weighs in his favour. To support that proposition reliance was placed on the Victorian decision of Valbe v Irlicht [2001] VSC 53. In fact that proposition runs entirely counter to what was determined in Clayton's case. At first instance in Clayton the Master had determined the case was 'weak'. Chief Justice Malcolm, delivering the decision of the court, was careful to point out the real question was whether there was a serious issue to be tried not whether the case brought by the plaintiff was either weak or strong. In determining this application, while I have taken into account submissions made by counsel for the second defendant as to the relevant principles, I have relied upon what I see as the binding authority of Clayton.
In this case the submissions of both counsel focused on two aspects of the application. First the length of the delay and second, the strength of the plaintiff's claim. It is convenient to deal with the second of these questions first because it can be quickly disposed of.
In my view the plaintiff's claim is arguable. The relevant facts are these. The plaintiff was born on 25 July 1980. He was aged 27 years at the date of the deceased's death. Throughout his early life the plaintiff was encouraged by his father to pursue the life of a farmer. The plaintiff says, and for the purpose of this application, it must be accepted, the deceased created an expectation that the family farms were to become the plaintiff's upon the deceased's death. The plaintiff says the deceased expressed the desire on a number of occasions for the plaintiff to inherit the farms and continue the farming enterprise like his father and grandfather before him.
The plaintiff says he made substantial contributions to his father's farms and the farming business. After the deceased's ability to run the farm was diminished due to injury and poor health, the plaintiff gave up his own carpentry business to return to the farms and work the farming business with his father. By returning to the farms the plaintiff reduced his income and arguably reduced his future income prospects.
The plaintiff says he introduced modern farming techniques to his father's farming operations. He expanded the farming operations and generated new income streams for the farming business. He did not receive personally any financial benefit from the additional income generated. In fact, between 2002 and 2008 he worked for a relatively modest income and received little in the way of benefits. He worked long hours and did everything that was necessary to advance the farming enterprise.
At the time of the deceased's death, his estate was worth approximately $7 million. It is the plaintiff's case that there had as a consequence of the plaintiff's efforts arisen a moral obligation on the part of the deceased to provide for the plaintiff. Doubtless provision had to be made for the deceased's widow, the second defendant. But even taking that into account, it is the plaintiff'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 plaintiff 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 deceased failed to discharge. It is arguable the plaintiff advanced the interests of the estate very much to the benefit of the deceased. 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.
Turning then to the question of delay. There is no support in the authorities for the suggestion that leave should not be granted simply because the delay is lengthy. A review of the cases does not really assist as each case must be decided on its merits. Perhaps all that can be said is the longer the delay the more cogent the explanation for the delay must be.
The plaintiff's explanation for the delay can be summarised as follows. He did not until October 2009 know that he could challenge the deceased's will. He 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 second defendant, there is no evidence as to his financial status at that time. In December 2012, he believed that he had an agreement with the second defendant concerning the deceased's estate. I will return this last point later in these reasons.
On behalf of the second defendant the inadequacy of the explanation for the delay was put with some care. It was submitted at the time of his father's death the plaintiff knew that someone would have to attend to the deceased's estate. It was said the plaintiff conceded his mother did mention 'probate' to him. He was aware from the first he had received very little from the deceased's estate yet he did not take any steps to explore his rights at the time.
In October 2009 the plaintiff's accountant advised him he could challenge the deceased's will and that there were time limits. He did nothing. In August 2010 he received legal advice from Young and Young lawyers. The content of that advice has not been disclosed. It can be assumed his solicitors as competent lawyers, explained to him the existence of time limits in the relevant legislation and the need to make an application in relation to the deceased's estate. He decided to do nothing. He does say in his evidence that after taking legal advice he decided not to issue proceedings but to wait and see if something would change.
On 22 July 2013, the plaintiff 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.
In my view, the length of the delay and the inadequate explanation for the delay are both factors against the granting of the extension sought by the plaintiff. Given that the time limited for the application is six months, seven years is a very long time. The onus lies on the plaintiff to establish sufficient grounds for taking the matter out of the general rule and depriving the second defendant of the protection afforded by the time limit. In my view he has not satisfied that onus. It is to be remembered that the time limit is a substantive provision and not simply a procedural rule. At least from September of 2009 the plaintiff knew he could make a claim and the time limits applied to making any claim. Any doubt about that must have been removed when he consulted solicitors in August of 2010. He made a conscious informed decision not to proceed and that is a strong factor against a grant of leave.
There were negotiations between the plaintiff and the second defendant in relation to the deceased's estate. The parties engaged in mediation in December of 2010 but the mediation process failed. In June of 2012 the second defendant rekindled discussions about the plaintiff returning to the farms, running the farming business and ultimately becoming the owner of the farms. From about July 2012 to December 2012 the plaintiff and the second defendant engaged in a negotiation process with the assistance of an accountant. In December of 2012 an agreement was reached which the plaintiff understood would result in him owning the farmland capable of being farmed after a three year period.
Regrettably, the parties now disagree as to the meaning and effect of that agreement. The plaintiff has issued separate proceedings against the second defendant seeking to enforce the agreement. Those proceedings are yet to be resolved. While the mediation process in 2010 is a factor which might go some way to explain the delay in bringing the proceedings it 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 plaintiff'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.
The estate of the deceased was distributed many years ago. The second defendant has carried on the farming business on the farms. It may be possible to unwind the distribution of the estate but how that would be done with respect to the farming business is not entirely clear. Although it is not a large factor, I am satisfied of the fact the estate has been distributed is a factor against the grant of leave.
Weighing all matters in the balance, I am not satisfied this is an appropriate case in which to grant leave. The length of the delay and the failure of the plaintiff to adequately explain the delay are, in my view, overwhelming factors against a grant of an extension of time. I accept there are other factors which weigh in the balance - particularly the fact the plaintiff has potentially a claim. But, in my view when all the factors are looked at together it is not in the interest of justice to grant the extension sought by the plaintiff.
Accordingly the application will be dismissed. I will hear the parties as to costs.