Mortimer v Lusink - [2016] QSC 119

SUPREME COURT OF QUEENSLAND

CITATION:

Mortimer v Lusink & Ors [2016] QSC 119

PARTIES:

ANITA NARELLE MORTIMER (under Part 4 of the Succession Act 1981)

(applicant)

v
CHRISTOPHER THEODORE GORDON LUSINK (as executor of the will of LOMA NARELLE GREEN deceased)

(first respondent)

CHRISTOPHER THEODORE GORDON LUSINK (in his personal capacity)

(second respondent)

VANESSA LUSINK (as beneficiary under the will of LOMA NARELLE GREEN deceased)

(third respondent)

GORDON THEODORE LUSINK (as beneficiary under the will of LOMA NARELLE GREEN)

(fourth respondent)

FILE NO/S:

Supreme Court No 3842 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2016

JUDGE:

Martin J

ORDER:

The application is dismissed.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – PROCEDURE – TIME FOR MAKING APPLICATION – EXTENSION OF TIME – GENERAL PRINCIPLES – where the applicant, the testator’s daughter, sought to bring an application for further provision from the estate – where the application was brought nine days out of time – where the applicant contends that she has a sufficient explanation for the delay in that the late application was brought about solely through the actions of her solicitor – where the applicant contends that the strength of her case justifies the extension of time – whether the applicant has demonstrated “a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time”

Succession Act 1981 (Qld), s 41(8)

Bird v Bird [2002] QSC 202, considered
Leahy v Trescowthick [1999] VSC 409, considered
Hills v Chalk[2009] 1 Qd R 409, considered
Re Salmon (deceased) [1981] Ch 167, followed
Singer v Berghouse (1994) 181 CLR 201, applied
Warren v McKnight [1996] 40 NSWLR 290, applied

COUNSEL:

D B Fraser QC for the applicant

R M Treston QC for the respondents

SOLICITORS:

Dormer Stanhope for the applicant

de Groots for the respondents

MARTIN J: Loma Green died on 2 July 2015. On 14 April 2016 Anita Mortimer (her daughter) filed an application in which she seeks a direction that she be allowed to bring an application for further provision from her mother’s estate and for ancillary orders. Such a direction is necessary because the application was filed nine days out of time.
Part 4 of the Succession Act 1981 (Qld) (the Act) deals with family provision. Within that Part, s 41(8) provides:
“Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made.”
The nine month period expired on 4 April 2016.
The relevant principles
An applicant who seeks a dispensation by way of a direction that an application may be heard faces a substantial barrier.…

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 Mortimer v Lusink

Details

AGLC: Mortimer v Lusink [2016] QSC 119
Case: [2016] QSC 119
Decision Date: 2 June 2016

CaseChat Overview and Summary

In the case of Mortimer v Lusink, the applicant, the testator's daughter, sought to bring an application for further provision from the estate nine days after the time limit had expired. The primary issue before the court was whether the applicant had demonstrated a sufficient explanation for the delay and if her case was strong enough to warrant an extension of time. The applicant argued that the delay was due to her solicitor's actions and that the strength of her case justified the extension of time. The court considered the general principles of extending time in such applications and the purpose behind limitation periods, which aim to ensure prompt administration of estates and provide certainty to beneficiaries.

The court found that the applicant had not demonstrated a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time. The factors in favour of the applicant were deemed too weak to justify the order sought. The court also noted that even if the application were allowed to proceed, any order made in the applicant's favour would likely be disproportionate to the costs involved. The application was dismissed, and the limitation period was upheld to ensure the prompt administration of the estate and provide certainty to the beneficiaries.

The court's decision was based on the principle that a limitation period represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period. The discretion to extend time is an exception to this rule and requires the applicant to show that their case is a justifiable exception. The applicant in this case failed to demonstrate that her case was a sufficient exception to warrant an extension of time.

The court concluded that the application was dismissed and that the limitation period should be upheld to ensure the prompt administration of the estate and provide certainty to the beneficiaries. The court found that the factors in favour of the applicant were too weak to justify an extension of time and that any order made in the applicant's favour would likely be disproportionate to the costs involved.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In any event, mere estrangement is not a disqualification for an applicant. But it does provide the background to the family relationships and can serve to explain the manner in which an estate is distributed. The same might be said where the relationship is distant and where communication is infrequent. In Burke v Burke[10] Ward JA analysed a number of authorities on estrangement and, while that situation is not asserted here, the reasoning can help in considering a case where the connection is limited. Her Honour concluded:(a) That, while the mere fact of estrangement should not ordinarily result in a child not being able to satisfy the jurisdictional requirement, it does not follow that there is a prima facie entitlement to provision in circumstances where there is financial need on the part of an estranged adult child;[11](b) It is for the primary judge “to evaluate all the relevant circumstances, including, where there has been a period of estrangement, the circumstances of that estrangement and whether there has been any attempt at reconciliation; and that there may be no one right answer: reasonable minds may differ”;[12] and(c) The fact of estrangement is a matter to be taken into account but it is not necessarily determinative.[13] [10] [2015] NSWCA 195.[11] Op cit at [89].[12] Op cit at [93].[13] Op cit at [95].Conclusions In an application of this kind, the applicant is assumed to have “put her best foot forward”.[14] Her best case, then, is one in which the applicant:(a) Has not established that the deceased was mistaken in her assumptions about the applicant’s position;(b) Has been shown to have been emotionally removed from the deceased and to have had little contact with her for over half a century;(c) Has no entitlement to provision as of right; and(d) Is living in modest, but not straitened, financial circumstances. [14] Higgins v Higgins [2005] 2 Qd R 502 at [46]. The applicant must do more than show that she might succeed. She has to demonstrate “a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time”. This she has not done. The factors in her favour are too weak to justify the order sought. Further, even if the application were allowed to proceed and the applicant were to succeed, I am satisfied that any order that might be made in the applicant’s favour would be so limited that it would be disproportionate to the costs involved. The application is dismissed.

Ratio Decidendi

Legal Principle Established

Finally, consideration must be given to the general purpose of a limitation period. This was also considered by Muir JA who summarised it in the following way:[78] The time limit imposed by s 41(8) of the Act has the obvious purpose of ensuring that an application for further provision from an estate does not unduly interfere with the estate’s prompt administration. There is also the consideration that persons named as beneficiaries in wills, to adopt the language of McHugh J in relation to limitation periods in Brisbane South Regional Health Authority v Taylor ‘… should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against [the estate].’[79] His Honour’s subsequent observations concerning the nature of limitation periods are also of relevance:“A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is ‘to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.’ But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.” (citations omitted, emphasis added)The circumstances of this application With those principles in mind, I turn to the facts of this case. The respondents accept that there is no evidence that they would suffer any particular prejudice beyond:(a) The (possible) return of the distributions already made to them; and(b) The loss of the right to rely on the limitation period. As for the possible return of the distributions already made, the respondents have given an undertaking not to dispose of them until further order. In any event, the two types of prejudice referred to will be part of any application of this type.

CITATION:	Mortimer v Lusink & Ors [2016] QSC 119
PARTIES:	*ANITA NARELLE MORTIMER (under Part 4 of the Succession Act* 1981) (applicant) v CHRISTOPHER THEODORE GORDON LUSINK (as executor of the will of LOMA NARELLE GREEN deceased) (first respondent) CHRISTOPHER THEODORE GORDON LUSINK (in his personal capacity) (second respondent) VANESSA LUSINK (as beneficiary under the will of LOMA NARELLE GREEN deceased) (third respondent) GORDON THEODORE LUSINK (as beneficiary under the will of LOMA NARELLE GREEN)** (fourth respondent)
FILE NO/S:	Supreme Court No 3842 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	2 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	18 May 2016
JUDGE:	Martin J
ORDER:	The application is dismissed.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION – PROCEDURE – TIME FOR MAKING APPLICATION – EXTENSION OF TIME – GENERAL PRINCIPLES – where the applicant, the testator’s daughter, sought to bring an application for further provision from the estate – where the application was brought nine days out of time – where the applicant contends that she has a sufficient explanation for the delay in that the late application was brought about solely through the actions of her solicitor – where the applicant contends that the strength of her case justifies the extension of time – whether the applicant has demonstrated “a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time” Succession Act 1981 (Qld), s 41(8) Bird v Bird [2002] QSC 202, considered Leahy v Trescowthick [1999] VSC 409, considered Hills v Chalk[2009] 1 Qd R 409, considered Re Salmon (deceased) [1981] Ch 167, followed Singer v Berghouse (1994) 181 CLR 201, applied Warren v McKnight [1996] 40 NSWLR 290, applied
COUNSEL:	D B Fraser QC for the applicant R M Treston QC for the respondents
SOLICITORS:	Dormer Stanhope for the applicant de Groots for the respondents