Pergoleto v Chandler - [2021] SASC 30

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 30
Judge 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…

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 Pergoleto v Chandler

Details

AGLC: Pergoleto v Chandler [2021] SASC 30
Case: [2021] SASC 30
Decision Date: 24 March 2021

CaseChat Overview and Summary

The applicant, who is one of the children of the deceased, seeks remedies under the Inheritance (Family Provision) Act 1972 and common law remedies if the statutory claim fails. The respondents, who are the other children of the deceased, have applied to have the proceedings dismissed summarily. The deceased died on 12 August 2018, and a grant of probate was made on 12 March 2019. The applicant commenced the proceedings on 20 November 2019, which is outside the six-month time limit set out in the IFP Act. The applicant seeks an extension of time to commence the proceedings.

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

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 by reason of that application or any order made thereon.(6) An application for the benefit of this Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate.(7) Where an application has been made for the benefit of this Act, the Court may, if satisfied that it is just and expedient to do so, permit at any time prior to the final determination of the proceedings, the joinder of further claimants as parties to the application. As mentioned, the applicant seeks an extension of time. The proceedings were commenced more than six months after the grant of probate. The solicitors acting for the applicant recognised that there may be difficulties in obtaining an extension of time. A Statement of Claim was filed. It purports to bring a claim in deceit and a conspiracy to defraud the applicant, in addition to the statutory claim. The gist of the additional claims is that the applicant was misled by the respondents, his siblings, about progress of the grant of probate and the status of the distribution of the estate. Those claims are denied by the respondents, who say the opposite was true and that the applicant knew full-well the position in relation to the application for a grant of probate. Initially the applicant was legally represented, but now is self-represented.

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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