Goldsmith v Goldsmith - [2025] VSC 679

IN THE SUPREME COURT OF VICTORIA

Not Restricted

COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S ECI 2025 00614

IN THE MATTER of Part IV of the Administration and Probate Act 1958

- and -

IN THE MATTER of the Estate of JOSEPH KEVIN GOLDSMITH, deceased

BETWEEN:

MALCOLM JOHN GOLDSMITH	Plaintiff
v
CARLY LOUISE GOLDSMITH (as executor of the deceased estate of JOSEPH KEVIN GOLDSMITH)	Defendant

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JUDGE:	Barrett AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2025
DATE OF JUDGMENT:	6 November 2025
CASE MAY BE CITED AS:	Goldsmith v Goldsmith
MEDIUM NEUTRAL CITATION:	[2025] VSC 679

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ADMINISTRATION AND PROBATE – TESTATOR’S FAMILY MAINTENANCE – Extension of time to bring application for provision under s 99 of the Administration and Probate Act 1958 (Vic) – Whether implied application for extension of time in originating motion – Alternatively, whether plaintiff should have leave to amend originating motion to seek extension of time – Green & Anor v Ellul & Ors [2018] SASCFC 100 considered and applied – Held: No implied application for extension of time made by Originating Motion –Application to amend originating motion dismissed – Summary judgment granted to defendant.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Sheppard	Kotthoff Law
For the Defendant	Ms R G Morison	Steven Mark Hopper

TABLE OF CONTENTS

Introduction

Background

The Estate and Distributions

Submissions

Legislation and Principles

Green v Ellul

Does the OM include, by implication, an application for an extension of time?

Should the plaintiff have leave to amend the OM?

Should the plaintiff’s claim be summarily dismissed?

HIS HONOUR:

Introduction

On 30 April 2024, Joseph Kevin Goldsmith (‘deceased’) died, leaving a will dated 3 June 2021 (‘Will’). Probate of the Will was granted to the defendant on 12 July 2024, and accordingly, the six-month period within which an application for provision could be filed expired on 13 January 2025. The plaintiff filed an application for provision out-of-time on 7 February 2025.
There are two applications before the Court:
(a)The defendant’s application by summons filed on 19 May 2025 seeking summary dismissal of the plaintiff’s Part IV claim pursuant to s 99(1) of the Administration and Probate Act 1958 (Vic) (‘AP Act’) or alternatively, s 63(2)(b) of the Civil Procedure Act 2010 (Vic) (‘CPA’), and Order 22 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’), on the basis that it was filed out-of-time and has no prospects of success.[1]
(b)The plaintiff’s application by summons filed on 29 July 2025 seeking to amend his Originating Motion (‘OM’) to apply for an extension of time for provision pursuant to r 36.01 of the Rules.
[1]Supreme Court (General Civil Procedure) Rules 2015 were the applicable Rules at the time of hearing.
The plaintiff relies on:
(a)affidavits of Ivor Harold Nyman affirmed on 9 July 2025 and 17 July 2025; and
(b)written submissions filed on 17 July 2025.
The defendant relies on:
(a)affidavits…

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 Goldsmith v Goldsmith

Details

AGLC: Goldsmith v Goldsmith [2025] VSC 679
Case: [2025] VSC 679
Decision Date: 6 November 2025

CaseChat Overview and Summary

The case of Goldsmith v Goldsmith involved a dispute regarding a testator's family maintenance under the Administration and Probate Act 1958 (Vic). The plaintiff sought an extension of time to bring an application for maintenance under section 99 of the Act, following the defendant's objection to the late filing of the application. The matter was heard in the Supreme Court of Victoria. The central legal issue in this case was whether the plaintiff had effectively made an implied application for an extension of time in the originating motion or if the plaintiff should be granted leave to amend the originating motion to seek an extension of time. The court examined this issue in light of the decision in Green & Anor v Ellul & Ors [2018] SASCFC 100.

The court found that there was no implied application for an extension of time made by the originating motion, as the motion did not explicitly or implicitly request an extension of time. The court also held that the plaintiff should not be granted leave to amend the originating motion to seek an extension of time, as the amendment would not have been in the interests of justice and would have caused an undue delay in the proceedings. The court applied the principles set out in Green & Anor v Ellul & Ors [2018] SASCFC 100, which emphasised the importance of adhering to statutory time limits and the need to balance the interests of justice with the efficient administration of justice. Consequently, the court dismissed the plaintiff's application to amend the originating motion and granted summary judgment in favour of the defendant.

As a result of the court's decision, the plaintiff's application for an extension of time to bring a maintenance application under section 99 of the Administration and Probate Act 1958 (Vic) was denied, and the defendant was granted summary judgment. The plaintiff's claim for maintenance was dismissed, and the defendant was not required to provide financial support to the plaintiff under the terms of the will. This outcome highlights the importance of strict compliance with statutory time limits in legal proceedings and the need to balance the interests of justice with the efficient administration of justice.

Orders