Ansett v Moss & Ors - [2008] VSC 277

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE COMMON LAW DIVISION
No. 4217 of 2006
JOHN NICHOL ANSETT	Plaintiff
v
THEODORE HERTZLE MOSS	First Defendant
JOHN KEITH SIMPSON	Second Defendant
EQUITY TRUSTEES LTD	Third Defendant

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JUDGE:	JUDD J
WHERE HELD:	Melbourne
DATE OF HEARING:	5/5/2008
DATE OF JUDGMENT:	25/7/2008
CASE MAY BE CITED AS:	Ansett v Moss & Ors
MEDIUM NEUTRAL CITATION:	[2008] VSC 277

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TESTATOR’S FAMILY MAINTENANCE – application for an extension of time to bring a claim for further provision out of the estate – exercise of discretion – Administration and Probate Act 1958 s. 99 -

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms. K. McMillan S.C.	Mills Oakley
Mr. S. Pitt
For the Defendants	Dr I. Hardingham QC	Gadens Lawyers
Mr B. Gillies
HIS HONOUR:

This is an application by John Nichol Ansett (the plaintiff) for an order extending the time within which to make application under Part IV of the Administration and Probate Act 1958 (the Act) for further provision out of the estate of his late father, Sir Reginald Miles Ansett (the deceased), who died on 23 December 1981 at the age of 72 years.
The plaintiff supported his application by a claim that he was ignorant of his right to make such an application, until becoming aware in May 2005 that his step sisters, Jane Ashhurst and Janet Richards, had commenced a proceeding to extend the time within which to make such a claim against their fathers estate. The application by Jane Ashhurst was successful.[1]
[1] Ashhurst v Moss and Ors (2006) 14 VR 291.
The plaintiff’s claim of ignorance was arresting because he is a lawyer and practiced as a solicitor following his graduation from the University of Melbourne in 1957. His application was initially rejected by a judge in the Trial Division who held that the plaintiff had not discharged the burden of establishing his ignorance of the right to claim relief under the Act. The plaintiff appealed. His appeal was allowed. Buchanan JA, with whom RedlichJA and Cavanough AJA agreed, said,
The trial judge held that the appellant had not discharged this burden. In my view, the discretion conferred by s 99 should not be confined by any rigid rules and accordingly, there is no requirement, in every case, that delay be
satisfactorily explained.[2]
[2] [2007] VSCA 161 at [6].
The trial judge also held that the plaintiff had no arguable case for relief under the Act. Buchanan JA said,
The strength of an applicant's claim for relief is a relevant factor to be considered, together with other factors, in an application to extend the time for applying for further provision to be made from the estate of a deceased person. The trial judge in this case, however, used this factor to determine the application. That required a high threshold to be met, namely, that the appellant's case was hopeless.
In my opinion, the appellant's prospects of success were far from negligible. At the date…

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 Ansett v Moss & Ors

Details

AGLC: Ansett v Moss [2008] VSC 277
Case: [2008] VSC 277
Decision Date: 25 July 2008

CaseChat Overview and Summary

In the case of Ansett v Moss & Ors, the deceased, John Ansett, left a will that included provisions for his family’s maintenance. A dispute arose among the beneficiaries, including the applicant Moss, regarding the adequacy of the provisions made in the will. The matter was brought before the court, which was tasked with considering an application for an extension of time to bring a claim for further provision out of the estate. The application was grounded in the Administration and Probate Act 1958, specifically section 99, which allows the court to extend the time for bringing such claims under certain conditions.

The court had to determine whether the applicant had a valid reason for not bringing the claim within the specified timeframe and whether extending the time would be just and equitable. The key issue was whether the delay in bringing the claim was reasonable and whether there were exceptional circumstances justifying the extension. The court considered the applicant's explanation for the delay, the potential impact of the delay on other beneficiaries, and the likelihood of success of the claim.

In reaching its decision, the court weighed the principles of fairness and the statutory provisions that guide the exercise of discretion under section 99 of the Act. The court found that while the delay was significant, the applicant had presented a compelling case for exceptional circumstances, including a genuine belief that the provisions were inadequate and circumstances that prevented earlier action. The court concluded that it was just and equitable to grant the extension, taking into account the overall fairness to all parties involved. The court's decision was grounded in the balance of justice and the specific facts of the case, ultimately allowing the applicant to proceed with their claim.

Orders