Borgia v Bugge

[2003] NSWSC 765

CITATION:	Borgia v Bugge [2003] NSWSC 765
HEARING DATE(S):	28, 29 April 2003
JUDGMENT DATE:	20 August 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	(1). I order that the time for the institution of these proceedings be extended up to and including 19 July 2002; (2). I order that each Plaintiff receive from the estate of the late Carmeni Bugge ("the Deceased") a legacy in the sum of $100,000, and that the payment of $50,000 received by each Plaintiff in February 2002 be treated as part-payment of such legacy, the outstanding balance of each such legacy not to bear interest if paid on or before 20 September 2003, and if not so paid to bear interest at the rate prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898; (3). I order that the costs of the Plaintiffs on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased; (4). The exhibits may be returned.
CATCHWORDS:	Succession - Family Provision - Claims by four adult daughters - Proceedings brought out of time - Extension of prescribed period - Financial and material circumstances of Plaintiffs - Competing claims of beneficiaries.
LEGISLATION CITED:	Family Provision Act 1982 Wills, Probate and Administration Act 1898
CASES CITED:	Bastow v Bastow (Hodgson J, 8 September 1989, unreported) de Winter v Johnstone (Court of Appeal, 23 August 1995, unreported) Fancett v Ware (Young J, 3 June 1986, unreported) Phillips v Quinton (Powell J, 31 March 1988, unreported) Singer v Berghouse (1994) 181 CLR 201
PARTIES :	Carmela Borgia (First Plaintiff) Angella Leonello (Second Plaintiff) Teresa Bugge (Third Plaintiff) Giovanna Valerioti (Fourth Plaintiff) Domenico Bugge (Defendant)
FILE NUMBER(S):	SC 3682/02
COUNSEL:	M. Cashion SC, P. Bolster (Plaintiffs) B. Coles QC, D. Warren (Defendant)
SOLICITORS:	Marando Solicitors (Plaintiffs) Galluzzo Golotta Andriano Simone, Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 20 August 2003

3682 of 2002 CARMELA BORGIA and ORS -v- DOMENICO BUGGE

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 19 July 2002 the Plaintiffs, Carmela Borgia, Angela Leonello, Teresa Bugge and Giovanna Velerioti, each claim substantively an order for provision for her maintenance out of the estate of their late father, Carmeni Bugge (to whom I shall refer as “the Deceased”).

3 The Deceased died on 25 September 1989, aged eighty-four years. He left a will dated 6 December 1965, probate whereof was on 5 March 1991 granted to Domenico Bugge, the executor named in such will (who is the Defendant to the present proceedings).

4 The Deceased, who was a widower at the time of his death (his wife Rosaria Bugge having died, aged seventy-three years, on 5 September 1984), was survived by the eight children of his marriage. The Plaintiffs are the four daughters of that marriage.

5 By his will, and in the events which had happened, the Deceased left the entirety of his estate equally among his four sons, Vincenzo, Domenico, Pasquale and Antonio.

6 The inventory of property discloses that the only asset in the estate of the Deceased was real property situate at 1184 The Horsley Drive, Wetherill Park (to which an estimated value of $300,000 was attributed).

7 That property comprised a large single block of semi-rural land on the southwestern outskirts of Sydney.

8 It would appear that about twenty years before the death of the Deceased his youngest child, Antonio (who was born on 27 May 1950 and is now fifty-two years of age) constructed a residence on a portion of that land. There was no formal subdivision of the land. However, Antonio and his wife have resided on that part of the land since the late 1970s, and all the children of the Deceased have thereafter referred to that part of the land as being Antonio’s land. At the outset of the hearing it was stated by Senior Counsel on behalf of the Plaintiffs that the Plaintiffs do not seek to disturb the possession of Antonio in that house property.

9 The entirety of the Wetherill Park land was held by the Defendant in his capacity as executor until late 2001, when part thereof, being some 4,617 square metres, was sold to the Roads and Traffic Authority. There remained 5,547 square metres in the name of the Defendant as executor of the estate. This new parcel of land (which includes that area upon which Antonio resides and which is referred to as Antonio’s land) is now known as Lot 1 in Deposited Plan 1032608. The part of the land which was sold to the Roads and Traffic Authority was known as Lot 2 in the same deposited land. The sale price of Lot 2 was $721,800. Of that amount $109,084 was paid to the ANZ Bank in order to discharge a mortgage over the land which was attributable to Antonio. The balance of the proceeds of sale, after account was taken of various costs, expenses and disbursements was in an amount of $609,927.80, which was held by the Defendant. The Defendant then, in about February 2002, made what was referred to as a partial “distribution” of the estate. He gave to each of the Plaintiffs the sum of $50,000; Vencenzo, Pasquale and the Defendant each received $126,273.30. The Defendant paid to himself a further amount of $31,216.20 as a “rates and interest adjustment”.

10 In his affidavit of 4 November 2002 the Defendant states that the remainder of the land (amounting to some 4,200 square metres and disregarding, for the purposes of the present calculation, Antonio’s land) is worth about $600,000. However, the Defendant estimates that the land is capable of being subdivided into two building blocks, although he states that he does not wish to carry out that subdivision himself, but desires simply to sell the land to a property developer.

11 There was placed in evidence a valuation by Frank Carapetta, a licensed valuer, annexed to his affidavit of 24 April 2003. That valuation suggests that, leaving aside Antonio’s land, the balance of the subject land held by the Defendant is capable of yielding five residential building blocks for a gross price of $1,450,000. According to calculations performed and submissions made on behalf of the Plaintiff, Antonio’s land (quite apart from the improvements by way of the residential structure erected thereon) must presently be worth at the very least $400,000.

12 Mr Carapetta’s valuation expresses the conclusion that the value to the estate, if it sold the land to a developer for the purpose of such developer effecting subdivision, would be $757,500. If, however, the estate itself were to carry out the development, then presumably it would receive a greater return for the exercise. There was placed in evidence on behalf of the Plaintiffs (as Exhibit C) two several valuations by Francesco Antonio Portolesi, a registered valuer, each dated 23 April 2003. Mr Portolesi valued Lot 1 (excluding therefrom Antonio’s land and the dwelling house erected upon Antonio’s land) at $820,000, and valued the entirety of Lot 1 (including Antonio’s land and the dwelling house erected thereon) at $1,500,000.

13 The Defendant has stated that until the proceedings have been determined the subject land will not be sold.

14 It is appropriate, therefore, that the Court should proceed upon the basis that the remaining asset in the estate (being that part of Lot 1 other than Anthonio’s land) has a value of no less than $757,500, and probably considerably in excess of that amount.

15 In assessing the value of the estate available for distribution it is necessary to take into account the costs of the present proceedings. It is estimated that the costs of the Plaintiffs will total about $60,000, whilst those of the Defendant will total about $74,000. Thus a total amount of $134,000 should appropriately be deducted from the value attributed to Lot 1, in order to arrive at the value of the estate presently available for distribution.

16 The Deceased and his family, before coming to Australia, conducted a farm in Italy. It would appear that they maintained a modest lifestyle. Each of the children, when old enough, shared in the farming activities. The formal education of the eight children in few instances proceeded beyond primary school level. The Deceased migrated to Australia with his eldest son Vincenzo in 1950 and was later joined by his wife and six of their other seven children in about 1956. The remaining child, Carmela, who married in Italy in 1955, arrived in Australia with her husband about six or seven years later, in 1962.

17 I shall now set forth details of the financial and material circumstances of each Plaintiff.

18 Carmela (Mrs Borgia), the First Plaintiff, was born on 8 December 1937 and is now sixty-eight years of age. She is the second child of the Deceased. Carmela married Antonio Borgia in Italy in 1955. They have three sons, all of whom as now aged in their forties. Their youngest son still resides with them. Although she can read and write Italian, Carmela does not read, write or speak English.

19 Before her marriage Carmela worked on the family farm raising livestock, from the age of ten years, and she never went to school. Carmela and her husband arrived in Australia in 1962 (about six or seven years after the arrival of her mother and six of her seven siblings). She then worked with her husband on the Wetherill Park property, receiving no remuneration from her parents for that work.

20 Although generally in good health, Carmela suffers from diabetes.

21 It has already been observed that the mother of all the parties, Rosario Bugge, died in 1984, aged seventy-three years. She suffered from diabetes, and in her later years was paralysed and could not walk. From 1978 she resided with Carmela and Camela’s family. At the same time Carmela was also looking after her husband’s parents. Carmela’s sisters, Angela, the Second Plaintiff, and Teresa, the Third Plaintiff, assisted Carmela with their mother, and helped Carmela to cook and clean. After the death of Rosaria, the Deceased (who, during his wife’s declining years had continued to reside upon the family farm) took up residence with his daughter Teresa, the Third Plaintiff, for about eighteen months, and then came to reside with Carmela, who cared for him until his death on 25 September 1989. According to Carmela, she always had a close and loving relationship with both her parents. The remains of both her mother and her father are interred in Carmela’s family vault.

22 Carmela and her husband reside in a house property at 286 Edensor Road, Edensor Park, which is registered in the sole name of Carmela’s husband. Each of Carmela and her husband is in receipt of the age pension in an amount of $355 a fortnight. According to Carmela, it is necessary for her to care for her husband, because of head injuries which he has sustained.

23 Carmela’s only asset consists of savings of $30,000, representing the balance of the amount of $50,000 which was given to her by Domenico, in circumstances to which I shall shortly refer, from the proceeds of sale of part of the subject land to the Roads and Traffic Authority. The amount of about $20,000 from that sum was expended by Carmela on repairs to her residence.

24 Angela (Mrs Leonello), the Second Plaintiff, is the third child of the Deceased. She was born on 29 August 1935, and is now sixty-seven years of age. Angela is a widow, her husband having died in 1977. She has four married children, now aged between the late thirties and mid-forties.

25 Like her elder sister Carmela, Angela does not have any formal education, and before arriving in Australia worked, from the age of twelve years, upon the family farm, raising livestock. She does not read, write or speak English.

26 When she arrived in Australia Angela continued to work on the family farm until she married on 15 June 1956. She received no remuneration from her parents for that work.

27 Unlike her seven siblings, who received considerable assistance from their parents when each married, Angela upon her marriage received from her parents only a gift of seven pairs of bed sheets.

28 According to Angela she had a close and loving relationship with her father. In her affidavit evidence she set forth details of the contact which she had with her parents during their advance into old age, and the help which she gave towards caring for them when each was resident in Carmela’s house.

29 Angela is currently in receipt of a widow’s pension of $415 a fortnight. She is the sole owner of the house property at 179 Edensor Road, Edensor Park, to which she attributes a current market value of about $320,000. Angela’s only other asset is an amount of about $50,000, which represents the money received from the Defendant. In her affidavit of 19 July 2002 she stated that she proposes to use that money for necessary repairs to her residence, observing that the kitchen therein is thirty-four years old. However, that evidence was considerably qualified by Angela’s evidence under cross-examination, when she said that she had no present intention to repair or to renovate her residence. Angela has no debts.

30 Teresa (Mrs Bugge), the Third Plaintiff, is the fourth child of the Deceased. She was born on 10 November 1938 and is presently aged sixty-four years. Teresa came to Australia in about 1956 with her mother and five of her siblings. She had attended school in Italy until the age of about thirteen years, and she then undertook a dress-making course. When she arrived in Australia Teresa obtained employment as a process worker in a factory for about six years until she married. The entirety of her income from that employment was given by her to her mother.

31 Teresa married her husband on 16 December 1961. They have three daughters aged in their late to mid-thirties. One of those daughters is single and still resides with Teresa and her husband.

32 Teresa’s husband, Antonio Bugge, has been diagnosed as suffering from cancer for the last six years, although he is currently in remission.

33 Teresa in her affidavit evidence set forth details of her contact with and care for her parents in their old age. The Deceased lived with Teresa for about eighteen months when her mother, Rosaria, on account of her own poor health, was not about to care for the Deceased. According to Teresa, the Deceased ceased working at about the time when she married. The reason for the Deceased ceasing to work was that he suffered injuries to his leg when struck by a motor vehicle. It was Teresa’s belief that from that time onwards the only income of the Deceased was a pension.

34 According to Teresa, she had a close and loving relationship with each of her parents.

35 Teresa and her husband are each currently in receipt of an age pension, each receiving $355 a fortnight. Teresa and her husband conjointly own their residence at 3 Elanora Place, Cecil Hills, to which they attribute a current market value of about $880,000. There is a mortgage debt of about $100,000 outstanding on that property. That mortgage debt is being paid off by two of Teresa’s daughters. Although Teresa herself has no debts, she is guarantor for a loan of about $100,000 obtained by one of her children.

36 Giovanna (Mrs Valerioti), the Fourth Plaintiff, is the seventh child of the Deceased. She is also known as Jane. She was born on 27 February 1948 and is now fifty-five years of age.

37 Giovanna was aged only seven when the family migrated to Australia in about 1955 of 1956. She was educated at Fairfield Public School and subsequently Fairfield Girl’s High School. Giovanna left school at the age of fourteen and commenced working at Sphinx Engineering at Granville, performing process work, from about 1963. She remained in that employment for about three years until she ceased work in about 1966, because, according to Giovanna’s evidence, the Deceased did not like her working.

38 Giovanna married George Valerioti in 1968. Two children were born to them, who are now aged thirty-three and twenty-seven.

39 After her marriage Giovanna worked in various fruit shops at Villawood, and Liverpool. She was then employed at Woolworths at Wetherill Park for eleven years. Until her marriage all her earnings went to her mother.

40 Giovanna’s husband died in 1980. It was necessary for her to continue working in order to support her family. In about February 2000 her son Charlie (who was born on 24 April 1976, and who at that time was aged only twenty-three) was involved in a jet-skiing accident and suffered severe head injuries. He remained in hospital for twelve months. It was necessary for Giovanna to cease work in January 2001, in order to care for Charlie. At the time when Giovanna swore her affidavit on 19 July 2002 he was still living with her, and she was his full-time carer. Charlie could walk only with someone beside him, and could not walk long distances. His speech was not coherent, and the right side of his body was either inactive or severely injured. Charlie has not at this stage received any compensation in consequence of his accident. He is in receipt of a pension.

41 In her affidavit of 12 December 2002 Giovanna said that since swearing her previous affidavit her son had improved and had married. He and his wife were then currently on their honeymoon, and intended to move into a new residence when they returned later in December 2002. Since Charlie’s wife would be working full-time it would be necessary for Giovanna to take him to doctors and physiotherapists each week. Giovanna expended about $13,000 of her savings in order to pay for her son’s wedding. According to her later affidavit she also paid off some of a personal loan, and used the rest for living expenses. Of the $50,000 which she received from the Defendant in February 2002, there remained only about $300 in December of that year.

42 Giovanna had a close and loving relationship with both her parents. She gave details of the extent of her care for and contact with her mother during her old age, especially after Rosaria had moved into Carmela’s residence.

43 When Rosaria moved to Carmela’s residence, the Deceased continued to reside upon the family property, with Antonio and his wife Anna. After the death of Rosaria the Deceased moved to Teresa’s residence for some months, and then to Carmela’s house, where he remained until his death in 1989. He required very considerable care in his old age. He was suffering from diabetes and he also was retaining fluid. Carmela received assistance from Teresa and Angela in looking after the Deceased.

44 According to Giovanna, her parents bought the Wetherill Park property (which she described as a farm) in about 1965, although it is probable that it was in fact purchased some years earlier, in 1961. At that time, Antonio, Pasquale (known as Pat), Domenico, the Defendant, Teresa and Angela were all residing there with their parents. Pasquale and Giovanna each moved out upon his marriage. Antonio continued residing in the family home with his parents when he married. In the late 1970s Antonio built a new house on the Wetherill Park property. As has already been recorded, he and his wife Anna still reside in that house.

45 According to Giovanna all the children had a very good and very close relationship with their mother. Although they had a close relationship with the Deceased and loved him very much, they were closer to their mother than to their father. According to Giovanna, at the time of the Deceased’s death he had a good relationship with all his children.

46 Giovanna has not been in employment since her son Charlie came home from hospital in early January 2001. She is currently receiving $399 a fortnight by way of social security pension. Until Charlie left home upon his marriage she received an additional $80 a fortnight for being his carer. Giovanna owns her own residence at 26/10 Tantarni Avenue, Green Valley, which has been unencumbered since about 1995. According to Giovanna, that house property has a present estimated value of about $300,000.

47 Giovanna’s only other asset apart from the house property is a Ford TX5 Ghia motor vehicle which, she purchased in 2002 for $10,000. That vehicle was purchased using part of the amount of $50,000 given to her by the Defendant in February 2002.

48 In March 2002 Giovanna was diagnosed as suffering from cervical cancer. She has undergone surgery, chemotherapy and radiation treatment for that condition.

49 It is appropriate that I should at this stage in the judgment also set forth details of the financial and material circumstances of each of the four sons of the Deceased, who are the beneficiaries under his will.

50 Vincenzo, the eldest child of the Deceased, was born on 23 November 1931 and is presently aged seventy-one years. He and his father arrived in Australia in May 1950, when Vincenzo was aged nineteen. Before coming to Australia he, like others of his siblings, had worked on the family farm in Italy. After his arrival in Australia Vincenzo worked as a labourer in various factories from 1950 until 1955. He gave assistance to the Deceased towards the purchase of a house in Italy for his sister Carmela, by transmitting more than 200 pounds to Italy in 1954.

51 Vincenzo married in 1955, and the following year he and his wife removed to Griffith, where they still reside. Soon after arriving in Griffith Vincenzo commenced working with his father-in-law on various vegetable farms. In 1969 he purchased a farm at 65 Bob Irvine Road, Griffith, where he continues to reside. In 1972 Vincenzo’s brother Pasquale became a partner in that farm, and in 1980 Vincenzo and Pasquale conjointly purchased another farm at Griffith. Vincenzo later transferred his interest in that latter property to Pasquale in return for Pasquale transferring to Vincenzo an interest in a farm at Hanwood.

52 In 2000, on account of health reasons and financial reasons, Vincenzo retired from work. He transferred his interest in the Hanwood farm to his sons. However, he retained a life tenancy for himself and his wife in that property.

53 According to his affidavit evidence, Vincenzo’s only asset is his interest in the estate of the Deceased. I assume, although he does not expressly say so, that he retains ownership of the property at 65 Bob Irvine Road, Griffith, where he and his wife have resided since 1969.

54 Vincenzo and his wife currently each receive an age pension in the sum of $355 a fortnight. Their sons assist them with any shortfall in their living expenses, which they estimate as totalling $330 a week.

55 Domenico, the Defendant (who is also known as Mick), is the fifth child of the Defendant. He was born on 22 February 1941 and is now aged sixty-two years.

56 Domenico arrived in Australia with his mother and five of his siblings in about 1956, when they joined the Deceased, who had migrated to this country in 1950, some six years earlier.

57 Domenico commenced work as a labourer shortly after his arrival in Australia. It was his practice to give his wages to his mother, who would in turn provide him with pocket money. That practice also applied to each of the other children when they commenced employment.

58 Domenico and his wife have been self-employed as deli retailers since early 1977. Their income fluctuates from month to month. However at the present time their taxable income averages about $30,000 a year ($600 a week), whilst their expenditure is estimated to total about $20,000 a year ($400 a week).

59 The principal asset owned by Domenico and his wife is their residence situate at and known as 144-156 Duff Road, Cecil Park. In his affidavit of 4 November 2002 Domenico also refers to his assets including “funds” (no other information concerning those funds being supplied). He does not disclose any liabilities.

60 Pasquale, the sixth child of the Deceased, was born on 7 August 1944 and is now aged fifty-eight years. He arrived in Australia with his mother and five of his siblings in about 1956, when he was aged about eight. He attended Fairfield Public School and Fairfield High School until he was aged fifteen, when he was in his second year of high school. From 1959 until 1966 Pasquale worked at various fruit markets. Until 1967 it was his practice to give most of his pay to his father, to assist him in meeting mortgage repayments for the property at Wetherill Park.

61 Pasquale removed to Griffith in September 1971, and married the following year. As I have already recorded, during that year he went into partnership with his brother Vincenzo, acquiring a half share in a farm at Hanwood from Vincenzo, and in 1980 the two of them purchased a farm at Yenda (which I gather to be identical to the farm at Griffith referred to by Vincenzo). When Vincenzo retired in 2000 Pasquale purchased his half-share in the Yenda property. The current assets of Pasquale and his wife are the Yenda farm, where they reside (to which an estimated value of $348,000 is attributed), farm machinery ($20,000), cash in hand ($40,000).

62 Their liabilities are as follows:

Mortgage on Yenda farm - $150,000

Farm liabilities in respect to replanting and establishing a vineyard - $60,000

Other liabilities (not otherwise identified) - $13,000

63 According to Pasquale, during the most recently concluded financial year the farm grossed $93,633, and expenditure totalled $71,616, leaving a net profit of $22,037.

64 Apart from farm expenses, the weekly household expenses and outgoings of Pasquale and his wife total $510.

65 Antonio is the eighth and youngest child of the Deceased. He was born on 27 May 1950 and is now aged fifty-three years.

66 Antonio and his wife reside at 1184 The Horsley Drive, Wetherill Park. As has already been observed, their residence and the curtilage thereto are located upon land which forms part of the estate of the Deceased, but which all parties are content should continue to be occupied by Antonio. Antonio estimates that the dwelling house which is erected upon that land has a value of $200,000. (Although Mr Portolesi’s valuation (Exhibit C) would seem to suggest that the dwelling house and the land whereon it stands have a present value of $680,000). The only other asset of Antonio and his wife is a 1989 Ford Falcon motor car, to which they attribute a value of $2,000. They do not have any liabilities.

67 At the present time Antonio is in receipt of sickness benefits in the sum of $90 a week. His wife receives $400 a week worker’s compensation, consequent upon an injury to her shoulder which she suffered during the course of her employment. It was stated by Antonio in his affidavit evidence that it was expected that his wife will continue to receive worker’s compensation payments until about May 2003. Before her injury, Antonio’s wife was receiving a gross income of $550 a week form her employment as a delicatessen assistant at Woolworths. Her net wages were $400 a week.

68 Antonio and his wife have two children now aged in their mid-twenties and late-twenties, both of whom currently live at home with their parents. Although both those children are in employment, according to Antonio they do not contribute to household expenses, neither do they pay board.

69 The household expenses of the family total about $522 a week.

70 It was acknowledged by all the children of the Deceased that their father had during his lifetime frequently stated that he proposed to leave the entirety of his estate to his four sons. It would appear, however, that the four daughters, whilst aware that their father proposed to make no testamentary provision for them, expected that they would receive some financial or material assistance form their four brothers. That expectation was based, at least in part, upon the statements made by their mother, who, whenever the Deceased stated that he intended the entirety of his estate to go to his four sons, would respond by saying that the Deceased had eight children, and that all eight should share in the estate. The Defendant did not dispute that he knew that to be his mother’s wish. He also agreed that before her death he had promised his mother that on the death of his father he would share the estate among all eight children, although the Defendant said that he did not promise her that the estate would be shared equally among those eight children.

71 After the death of the Deceased, the Defendant at various times said to one or other of his sisters words to the effect that he would abide by their mother’s wishes and that everyone would get a fair share of the estate. He also, on occasion, told one or other of his sisters that he would gather them together and would take them to a solicitor so that they could share in the estate.

72 Neither was it in dispute between the parties that a meeting attended by all eight children of the Deceased was held at the residence of Carmela in February 2002. That meeting had been arranged at the instance of the four sons of the Deceased, for the purpose of discussing the manner in which the proceeds of sale to the Roads and Traffic Authority of part of the Wetherill Park property would be distributed. It would appear that the meeting was far from tranquil (indeed, it could be described as acrimonious), and concluded without any agreement being reached. However, shortly after the meeting each of the four Plaintiffs received from the Defendant a cheque for $50,000. None of the Plaintiffs had indicated that she was satisfied with the amount of $50,000, when that figure was proposed by the Defendant at the meeting.

73 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claims of the four Plaintiffs.

74 I had the benefit of receiving a chronology from Counsel for the respective parties, together with a written outline of submissions from Counsel for the Plaintiffs. Those documents will be retained in the Court file.

75 Each of the Plaintiffs, as a child of the Deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, each Plaintiff has the standing to bring the present proceedings. The only other eligible persons in relation to the Deceased are the four sons of the Deceased, being the four beneficiaries named in the will. Each of those persons is also an eligible person within the same paragraph of the foregoing definition.

76 It will be appreciated that the proceedings were not instituted within the period of eighteen months from the death of the Deceased prescribed by section 16(1) of the Act. The Deceased died on 25 September 1989. Accordingly, the prescribed period expired on 25 March 1991. The proceedings were instituted only on 19 July 2002, that is, more than eleven years after the expiry of the prescribed period. It is necessary, therefore, to consider the application of the Plaintiffs, made in prayer 3 of the summons, for an extension of that prescribed period.

77 The Court has, by subsection (2) of section 16, a discretion to extend the prescribed period. However, in the absence of consent, the Court is (by subsection (3)) precluded from extending the prescribed period “unless sufficient cause is shown for the application not having been made within that period”. The application for extension of time must, however, be approached in the context of the claim of each Plaintiff, since it will be appreciated that there is no purpose in the Court extending the prescribed period if the substantive claim will, in any event, be unsuccessful. (See, for example, Fancett v Ware (Young J, 3 June 1986, unreported); Phillips v Quinton (Powell J, 31 March 1988, unreported); Bastow v Bastow, (Hodgson J, 8 September 1989, unreported); de Winter v Johnstone (Court of Appeal, 23 August 1995, unreported).)

78 In support of the application of the Plaintiffs for extension of time, they rely upon what they say the Defendant told them about what would happen to the estate when part of the Wetherill Park property was sold. It was submitted on behalf of the Plaintiffs that by the conduct of the Defendant the Plaintiffs were lulled into a false sense of security about what they would receive when the estate was eventually distributed. In addition, each Plaintiff asserts that she was unaware, firstly, of her right to make a claim under the Family Provision Act, and, secondly, of the existence of any limitation period for the making of such a claim.

79 It is appropriate, therefore, that I should proceed to a consideration of the substantive claim of each Plaintiff, and then, in the light of my conclusions concerning that claim, that I should proceed to a consideration of the application of each Plaintiff for extension of the prescribed period.

80 In performing the first stage in the two stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 209, the Court must firstly consider whether the provision, if any, made for the applicant left the applicant without adequate provision for her proper maintenance, education and advancement in life.

81 It is appropriate, in considering this question in relation to each of the four Plaintiffs, that the Court should bear in mind that an order for provision is not made as a reward for good conduct on the part of an applicant. Neither is it withheld as punishment for perceived bad conduct on the part of an applicant.

82 It was not disputed by the Defendant that each of the Plaintiffs finds herself presently in modest circumstances. The Defendant submitted, however, in the case of Carmela, that she accepted the amount of $50,000, and of that amount she still retains about $30,000. Further, that it was not asserted on her behalf that the remaining $20,000 was likely to be consumed by any foreseeable expenditure or that it needed to be topped up by the award of some additional sum.

83 In the case of Angela, she accepted the $50,000, and still retains that amount. In her oral evidence given under cross-examination, she stated, despite the intention set forth in her affidavit evidence, that she had no present intention to repair or to renovate her house property.

84 In the case of Teresa, she still retains the $50,000. Her oral evidence significantly qualified her affidavit evidence (concerning the reduction of the loan on her house).

85 In the case of Giovanna, she is a widow with two children. She has expended the $50,000. It was submitted by the Defendant that her present needs are not self-evident. Further, that whilst the Defendant conceded that Giovanna might possibly have established need some years ago, she does not do so at the present time.

86 It seems to me, however, that the fact that three of the four Plaintiffs retain a significant part of the $50,000 given to her by the Defendant, is not of itself determinative of the need of that Plaintiff. Such retention of funds is rather a tribute to the frugality and economy of the domestic arrangements and management of that Plaintiff.

87 It is abundantly obvious that Giovanna has established significant need. In my conclusion each of the other Plaintiffs has also established that her modest and frugal lifestyle is such that an augmentation thereof is both necessary and appropriate.

88 However, the claims of the Plaintiffs must be approached in the light of the competing claims of the four beneficiaries. The Defendant submitted that he and his three brothers have retained the land in specie since the death of the Deceased, so that it would be in the nature of an investment for their old age. It was submitted that they are entitled to regard it as an available resource, and that they have a legitimate expectation to do so. There is considerable substance in that argument. Nevertheless, it will be appreciated that the value of the land has greatly increased since the death of the Deceased, and especially since the sale of part of that land to the Roads and Traffic Authority.

89 In my conclusion, each of the Plaintiffs has established relevant need, and each of the Plaintiffs, subject to the two important qualifications of the competing claims of the four beneficiaries and of the failure to institute the proceedings within the prescribed period, has established an entitlement to receive from the estate of the Deceased a benefit in the sum of $100,000, of which sum each Plaintiff has already received the amount of $50,000.

90 I am in agreement with the submission of Senior Counsel for the Plaintiff that it is somewhat difficult to calculate the amount presently available in the estate. Nevertheless, I consider that that amount must at the very least be well in excess of $623,000 (deducting the total costs of $134,000 from the minimum figure of $757,500 expressed by Mr Carapetta, if the land be sold to a developer). It is possible that the value is of the order of $686,000 (if the costs be deducted from the figure of $820,000 expressed by Mr Portolesi). In the event that Antonio’s land be included in the assets of the estate, the foregoing figures would then be increased by at least $400,000, and possibly by as much as $680,000 (if Mr Portolesi’s valuations be adopted).

91 In consequence, the amount available in the estate is, firstly, sufficient to accommodate the payment thereout to the Plaintiffs of an additional sum totalling $200,000. That would leave an amount of at least $423,000 (probably no less than $486,000) remaining in the estate, to be shared among the four beneficiaries named in the will (three of whom have already, in February 2002, received significant distributions from the estate). I recognise that none of those beneficiaries maintains what could be regarded as in any way a lavish or expensive lifestyle. Nevertheless, the financial and material circumstances of each of the Defendant and his three brothers (especially of Antonio) are of a considerably higher order than those of any of the four Plaintiffs. I do not consider that the competing claims of the four beneficiaries are such as would properly have the effect of reducing, let alone extinguishing, an order for provision of the nature which I have indicated.

92 There remains then to consider only the question of extension of time.

93 It was submitted on behalf of the Defendant that each of the four Plaintiffs had made a conscious and deliberate decision not to contest the will of the Deceased.

94 That may be so. However, that conscious and deliberate decision was made in the context that the Plaintiffs relied upon their brothers to look after them. That reliance was based not only upon the constant reiteration by their mother to their father of the fact that the Deceased had eight children, not merely four sons, but also upon the conduct of the Defendant and his three brothers both before, and especially after, the death of the Deceased.

95 In Massie v Laundy (Young J, 7 February 1986, unreported), His Honour referred to the various factors which are relevant in a consideration of whether an applicant for extension of time has established “sufficient cause” for not bringing the proceedings within the prescribed period of eighteen months. Those factors include the following questions,

· Is the reason for making a late claim sufficient?

· Will the beneficiaries under the will be unacceptably prejudiced if the time were extended?

· Has there been any unconscionable conduct on either side which would enter into the equation?

96 I am satisfied that each of the Plaintiffs was by the conduct of the Defendant and the other sons of the Deceased lulled into a false sense of security concerning the way in which the estate would be administrated and the benefit which the Plaintiffs would expect to receive from the estate of their father. Further, each of the Plaintiffs was unaware of, firstly, the existence of her right to make a claim under the Family Provision Act, and, secondly, the existence of a limitation period in which to bring such a claim, until many years after the expiry of the prescribed period.

97 Further, it appears to me not to be without significance that the value of the estate has considerably appreciated in the period after the expiry of the prescribed period. If the Plaintiffs had brought a claim within the period of eighteen months after the death of the Deceased, it is likely that the value of the estate would have been only about $300,000 (that being the value attributed to it in the inventory of property) and that any application by the Plaintiffs would have been resisted on the ground of the strong competing claims of the four named beneficiaries.

98 To the extent that there has been any unconscionable conduct in the circumstances of the instant case, it appears to me to have been firstly on the part of the Deceased himself, in totally disregarding his four daughters, and acting as if he had only four sons. (The significant contributions, by way of personal efforts and by way of payment of their earnings, which the Plaintiffs made to the acquisition and conservation of the Wetherill Park land and to the financial resources of the family should not be overlooked). Further, the conduct of the Defendant and his brothers after the death of the Deceased was such that, as I have already observed, the Plaintiffs were lulled into a false sense of security, thinking and believing that their brothers would abide by the wishes expressed by their late mother and by the promise made to her by the Defendant, and that they would look after the four daughters of the Deceased by giving to the Plaintiffs some financial benefit out of the estate of their late father. Indeed, the Defendant did so, but not to the extent to which in my conclusion the Plaintiffs were entitled.

99 In all the circumstances, therefore, I consider it appropriate that in the case of each Plaintiff an order should be made allowing the application to be brought outside the prescribed period of eighteen months from the death of the Deceased.

100 Accordingly, I make the following orders:

(1). I order that the time for the institution of these proceedings be extended up to and including 19 July 2002.

(2). I order that each Plaintiff receive from the estate of the late Carmeni Bugge (“the Deceased”) a legacy in the sum of $100,000, and that the payment of $50,000 received by each Plaintiff in February 2002 be treated as part-payment of such legacy, the outstanding balance of each such legacy not to bear interest if paid on or before 20 September 2003, and if not so paid to bear interest at the rate prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898.

(3). I order that the costs of the Plaintiffs on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.

(4). The exhibits may be returned.

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Last Modified: 12/05/2003