SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
PERGOLETO v CHANDLER & ORS
[2021] SASC 30
Judgment of Judge Dart a Master of the Supreme Court
SUCCESSION - FAMILY PROVISION - CIRCUMSTANCES PRECLUDING RELIEF
BANKRUPTCY - ADMINISTRATION OF PROPERTY - CONTRIBUTION OF BANKRUPT AND RECOVERY OF PROPERTY
Application pursuant to Inheritance (Family Provision) Act 1972 - estate fully distributed - extension of time required - applicant a bankrupt - other causes of action vest in the trustee.
Held:
1. Court has no jurisdiction to grant an extension of time in respect of the statutory claim.
2. Applicant has no standing in respect of other causes of action, as they have vested in the trustee.
Inheritance (Family Provision) Act 1972 (SA) s 8; Bankruptcy Act 1966 (Cth) s 5, s 58(1), s 58 (3), s 58 (6), s 91 and s 116, referred to.
Brooks & Anor v Young & Ors [2018] SASCFC 81; Collicoat & Ors v McMillan & Anor [1999] 3 VR 803; Coffey v Bennett [1961] VR 264, considered.
PERGOLETO v CHANDLER & ORS
[2021] SASC 30Judge Dart
Civil
The applicant commenced these proceedings seeking remedies pursuant to the Inheritance (Family Provision) Act 1972 (“the IFP Act”). He also seeks other common law remedies in the event that the statutory claim is unsuccessful. The respondents ask the Court to deal with the application summarily and dismiss it. The respondents are entitled to a dismissal of the action.
Background
The applicant is one of the children of Antonia Pergoleto (“the deceased”) who died on 12 August 2018 leaving a will. A grant of probate was made on 12 March 2019 and the entire estate was distributed shortly thereafter in accordance with the terms of the will.
These proceedings were commenced on 20 November 2019. They were commenced out of time. The applicant seeks an extension of time within which to commence the proceedings. The IFP Act provides as follows:
8—Time within which application to be made
(1) Subject to this section, an application shall not be heard by the Court at the instance of a person claiming the benefit of this Act unless the application is made within six months from the date of the grant in this State of probate of the will, or letters of administration of the estate, of the deceased person.
(2) The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time for making an application for the benefit of this Act.
(3)An extension of time granted pursuant to this section may be granted—
(a) upon such conditions as the Court thinks fit; and
(b) whether or not the time for making an application pursuant to subsection (1) of this section has expired.
(4) An application for extension of time pursuant to this section shall be made before the final distribution of the estate.
(5) Any distribution of any part of the estate made before the application for extension of time shall not be disturbed…
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- AGLC
- Pergoleto v Chandler [2021] SASC 30
- Case
- [2021] SASC 30
- Decision Date
CaseChat Overview and Summary
The court must decide whether it has the jurisdiction to grant an extension of time for the applicant to bring the statutory claim and whether the applicant has standing in respect of other common law causes of action. The court must also determine whether the applicant has any other grounds to seek relief under the IFP Act or at common law.
The court found that it did not have jurisdiction to grant an extension of time for the applicant to bring the statutory claim. The court held that the applicant had no standing in respect of other common law causes of action because those causes of action have vested in the trustee. The court found that the applicant had not made out a case under the IFP Act or at common law. Therefore, the court dismissed the application.
The court dismissed the application and ordered that the applicant pay the respondents' costs.
Orders
Orders of the court
Held:
1. Court has no jurisdiction to grant an extension of time in respect of the statutory claim.
2. Applicant has no standing in respect of other causes of action, as they have vested in the trustee.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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