Borg v Hawke - [2004] VSC 279

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

No. 4078 of 2004

LORETTA BORG	Plaintiff
v
ROBIN STANLEY HAWKE	Defendant

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JUDGE:	CUMMINS J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 July 2004
DATE OF JUDGMENT:	2 August 2004
CASE MAY BE CITED AS:	Borg v Hawke
MEDIUM NEUTRAL CITATION:	[2004] VSC 279

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Administration and Probate Act 1958 - s.99 - application for extension of time in which to apply for family provision under Part IV - principles applicable - application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R. Wells	Slater & Gordon
For the Defendant	R. Phillips	Wills & Probate Victoria

HIS HONOUR:

By summons on originating motion both filed on 13 January 2004 the plaintiff Mrs Loretta Borg seeks leave pursuant to s.99 Administration & Probate Act 1958 to make application out of time for family provision pursuant to Part IV of that Act and for consequential orders. The motion seeks that pursuant to Part IV Administration & Probate Act 1958 such provision be made for her proper maintenance and support as the Court thinks fit out of the Estate of the deceased.

The plaintiff, Mrs Borg, is the daughter of the deceased who made her last Will on 27 August 1991. The deceased died on 28 October 2001. Probate of the Will was granted by the Court on 4 March 2002. The plaintiff says that the distribution of the deceased's Estate was not such as to make adequate provision for her proper maintenance and support.

The defendant, Mr Robin Hawke, is another child of the deceased and was the sole beneficiary of her Estate.

The deceased had seven children: Henry Jones, Loretta Borg, Beryl Jones (since deceased), Francis Edward Hawke, Cheryl Hawke, Robin Stanley Hawke (the defendant) and Neville John Hawke.

The plaintiff in her affidavit of 19 March 2004, which is the substantial matter on which the application proceeds, confirmed in evidence before me, sets forth the family history, some of which but not all of which I shall refer to.

The property constituting the Estate is real estate at 1 Young Street, Albert Park, valued at the time at $380,000, money in the bank of $23,000, small personal effects and no liabilities. At the date of the deceased's death, the deceased owned the property at Young Street as a joint proprietor with the plaintiff's brother Francis Edward Hawke, known as Frank Hawke, who is not a party to these proceedings. The property ultimately was sold, for some $480,000, in circumstances to which I shall come. The Estate, for all practical purposes, is of the order of $260,000 being half of $480,000 (going to the defendant by reason of a property settlement) and $28,000 in personal effects, leaving a net figure relevant to these proceedings of some $260,000.

First in relation to the application for leave to proceed out of time. The plaintiff deposes that at the time of her mother's death she believed that the Estate consisted…

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 Borg v Hawke

Details

AGLC: Borg v Hawke [2004] VSC 279
Case: [2004] VSC 279
Decision Date: 2 August 2004

CaseChat Overview and Summary

The case of Borg v Hawke involved a dispute concerning an application for an extension of time in which to apply for family provision under Part IV of the Administration and Probate Act 1958. The application was made by the appellant, Borg, seeking to extend the time limit within which to apply for family provision from her deceased father's estate. The application was opposed by the respondents, including the executors of the deceased's estate and his widow.

The primary legal issue before the court was whether the application for an extension of time should be granted, and if so, on what principles the court should apply in making that decision. The court was required to consider the relevant statutory provisions and case law concerning the extension of time in family provision applications, as well as the circumstances of the particular case.

The court found that the application for an extension of time should be granted, based on the principles established in previous cases. It held that the court has discretion to extend the time limit in exceptional circumstances, and that the application should be assessed on a case-by-case basis. The court found that the appellant had provided sufficient evidence to demonstrate that she had a bona fide claim for family provision, and that there were exceptional circumstances warranting an extension of time. The court also found that the delay in making the application was not unreasonable, and that the appellant had acted with due diligence in pursuing her claim.

The final orders of the court were that the application for an extension of time be granted, and that the appellant be allowed to apply for family provision within a specified time frame. The court also ordered that the respondents bear their own costs of the application.

Orders