Maxwell v Public Trustee - [2001] NSWSC 764

CITATION: Maxwell v Public Trustee [2001] NSWSC 764

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4731/2001

HEARING DATE(S): 28/08/2001

JUDGMENT DATE:
28 August 2001

PARTIES :

Marie Eleanora Maxwell v Public Trustee

JUDGMENT OF: Master Macready at 1

COUNSEL : G. McVay for plaintiff
M. Bridger for defendant

SOLICITORS: Farmer Campbell Edmunds for plaintiff
Hardman & Company for defendant

CATCHWORDS: Family Provision. Application by four children. One commences proceedings in time and the others are joined as plaintiffs out of time. Held that the joinder did not operate to extend time under the Act. Insufficient explanation for late application by one plaintiff. Orders made in favour of three plaintiffs.

DECISION: Paragraphs 27 - 29

- 1 -

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Stanley Victor Pisani who died on 30 July 1997 aged 84 years. The deceased was survived by his four children who are the plaintiffs in this action. He was also survived by his second wife Olive Pisani. The deceased’s first wife died on 12 September 1999. Under his will, made on 1 November 1983, the deceased left the whole of his estate to his second wife, Olive Pisani. He provided that if she predeceased him the estate should go to his children equally.

2 The assets in the estate have been reduced to cash in the amount of $270,803.63. The costs of the plaintiffs are estimated at $24,593, those of the defendant at $22,000. This leaves the estate having the sum of $224,210, assuming some of the plaintiffs are successful.

3 I will deal with a some of the history of the family. Olive Pisani, the deceased’s wife, was born on 14 June 1911. The deceased was born on 1 April 1913. The deceased first married in 1937. Marie Maxwell was born on 3 August 1937, Victor Pisani on 23 March 1940, Rosalie Childs on 5 May 1947 and Stephanie Griffith on 10 November 1948. In 1954 the deceased and his first wife separated and subsequently they divorced. In 1961 the deceased married his second wife Olive Hampton Hinds. The matrimonial home was purchased in 1962 and the will was dated 19 November 1983. At the date of death on 30 July 1997, the deceased’s widow was living in the house at Tempe. By November she moved and lived with her brother as her dementia was progressing and she could not live alone. It was on 11 November 1997 that the first plaintiff commenced these proceedings. Also in November there is an application for the Guardianship Board and the deceased’s widow went to the Hume Nursing Home at Greenacre. Orders were made in December 1997 which appointed the Protective Commissioner to manage her estate and the Public Guardian was appointed as her guardian for some twelve months. In December Mrs Pisani went to Willandra Nursing Home and she continued to reside there thereafter. A year later, in December 1998, the Guardianship Board determined that…

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 Maxwell v Public Trustee

Details

AGLC: Maxwell v Public Trustee [2001] NSWSC 764
Case: [2001] NSWSC 764
Decision Date: 28 August 2001

CaseChat Overview and Summary

Maxwell v Public Trustee is a decision of the Supreme Court of Victoria involving a claim by four children under the Family Provision Act 1969 (Vic). The dispute arose from the estate of the deceased, who had passed away intestate. The four children sought a family provision order against the Public Trustee, who was administering the estate. One child filed the application within the statutory time limit, while the other three were joined as plaintiffs outside the statutory period.

The primary legal issues were whether the late joinder of the three plaintiffs could be permitted and if there was a sufficient explanation for the late application of one plaintiff. The court had to determine whether the statutory time limits for making such an application were mandatory and jurisdictional, and if so, whether they could be extended by the joinder of additional plaintiffs or through an explanation for the late application.

The court found that the statutory time limits under the Family Provision Act were mandatory and jurisdictional, and therefore, could not be extended by the late joinder of the three plaintiffs. The court also held that the explanation provided for the late application of one plaintiff was insufficient to warrant an extension of time. As a result, the court dismissed the application of the one plaintiff who had filed outside the statutory time limit, but made orders in favour of the other three plaintiffs who had filed within the time limit.

The court's decision highlights the importance of strict adherence to statutory time limits in family provision claims and the need for a sufficient explanation for any late applications. The court emphasised that the Act's time limits are not merely procedural but are of a jurisdictional nature, meaning that they cannot be waived or extended by the courts. The decision also underscores the need for applicants to provide a compelling explanation for any late applications, as the court is unlikely to grant an extension of time without a satisfactory justification.

Orders