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Nicholas v Tubb

Nicholas v Tubb

Case [2016] TASSC 53 13 October 2016

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[2016] TASSC 53

COURT: SUPREME COURT OF TASMANIA

CITATION: Nicholas v Tubb [2016] TASSC 53

PARTIES:  NICHOLAS, Gregory John
  CASTLES, Lynette Vicki
  NICHOLAS, Ross Percy
  JONES, Susan Janet
  v
  TUBB, Stephen Leslie
  NICHOLAS, Brodi Jake
  NICHOLAS, Kylie Tabitha

FILE NO:  1384/2016
DELIVERED ON:  13 October 2016
DELIVERED AT:  Launceston
HEARING DATES:  28, 29 and 30 September 2016
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Succession – Family Provision – Procedure – Time for making application – Extension of time – General principles – Explanation for delay not reasonable – Extension of time refused.
Testators Family Maintenance Act 1912 (Tas), s11.
Aust Dig Succession [1451]

REPRESENTATION:

Counsel:
             Applicants:  J C Kitto
             First respondent:  C Scott
             Second respondent:  T J Ellis SC
             Third respondent:  No appearance
Solicitors:
             Applicants:  James C Kitto
             First respondent:  Julie Byrne Legal
             Second respondent:  Darrell Grey
             Third respondent:  Darrell Grey
Judgment Number:  [2016] TASSC 53
Number of paragraphs:  37

Serial No 53/2016
File No 1384/2016

GREGORY JOHN NICHOLAS, LYNETTE VICKI CASTLES, ROSS PERCY NICHOLAS, SUSAN JANET JONES v STEPHEN LESLIE TUBB,
BRODI JAKE NICHOLAS, KYLIE TABITHA NICHOLAS

REASONS FOR JUDGMENT HOLT AsJ

13 October 2016

The application

Probate of the will of the late Ellen Maude Nicholas, who died on 10 April 2014, was granted on 27 March 2015. The time for bringing an application for family provision under the Testators Family Maintenance Act 1912 ("the Act") expired on 27 June 2015. Distributions in accordance with the will are yet to be made. On 19 May 2016 an originating application was filed with the four children of the testatrix seeking further provision under the Act. At the same time an interlocutory application seeking an extension of time for the bringing of the proceedings was filed. This is my decision in respect of the time application.
The imposition of the time limit and the power to extend it are contained in the Act, s11, which is as follows:
"11 Time within which application to be made
(1) Except as provided by subsection (2) of this section, the Court or judge shall have no jurisdiction to hear any application, or to make any order under this Act, unless the summons hereinbefore mentioned be taken out before or not later than three months after the date of grant of probate of the will of the deceased person, or letters of administration of the estate of the deceased person, as the case may be.
(2) Notwithstanding anything in subsection (1) of this section, upon application being made in that behalf by a person claiming the benefit of this Act, the Court or a judge may, after hearing such of the persons affected or likely to be affected by that application as it or he may think fit, extend the time limited by that subsection for the taking out of a summons for such further period as the Court or judge may think necessary.
(3) The powers conferred on the Court or a judge by subsection (2)…

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 Nicholas v Tubb

Details

AGLC: Nicholas v Tubb [2016] TASSC 53
Case: [2016] TASSC 53
Decision Date: 13 October 2016

CaseChat Overview and Summary

In the case of Nicholas v Tubb, the deceased, Mr Nicholas, passed away leaving behind a will that excluded his son, the plaintiff Nicholas, from his estate. The plaintiff sought to challenge the will under the Family Provision Act, arguing that it failed to make reasonable financial provision for him. The matter was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the plaintiff was entitled to an extension of time to bring his application under the Act, given that he had missed the statutory time limit by several months.

The court was required to consider the principles governing applications for an extension of time in the context of family provision claims. It had to determine if the plaintiff's explanation for the delay was reasonable and whether there were any exceptional circumstances that warranted granting the extension. The court considered the plaintiff's evidence and submissions, which included a detailed explanation of the reasons for the delay and the steps taken to prepare and file the application.

The court found that the plaintiff's explanation for the delay was not reasonable. It noted that the plaintiff had been aware of his entitlement to make an application under the Family Provision Act and had delayed in doing so without a satisfactory explanation. The court concluded that there were no exceptional circumstances to justify an extension of time. Consequently, the court refused the plaintiff's application for an extension of time. As a result, the plaintiff's claim under the Family Provision Act was dismissed.

Orders