Re Haddow; Haddow v Haddow - [2021] VSC 553

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S ECI 2020 02836

IN THE MATTER of Part IV of the Administration and Probate Act 1958

- and -

IN THE MATTER of the Will and Estate of EVELYN WINIFRED HADDOW, deceased

BETWEEN:

COLIN ANDREW HADDOW	Plaintiff
v
IAN ALEXANDER HADDOW and KERRY ANNE HADDOW (as executors of the estate of the late EVELYN WINIFRED HADDOW, deceased)	Defendants

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JUDICIAL REGISTRAR:	Englefield JR
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2021
DATE OF JUDGMENT:	6 September 2021
CASE MAY BE CITED AS:	Re Haddow; Haddow v Haddow
MEDIUM NEUTRAL CITATION:	[2021] VSC 553 (first revision 7 September 2021)

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FAMILY PROVISION – Application for summary judgment – Originating motion filed before time limit for claim but not served on defendants – Whether defendants had notice of the claim – Where estate had been distributed after time limit for claim – Summary judgment given – Civil Procedure Act 2010 (Vic) ss 62, 63(2)(b) and 64 – Administration and Probate Act 1958 (Vic) ss 30, 93, 99 and 99A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J L Smith	Maurice Blackburn Lawyers
For the Defendant	E Konstantinou	Macpherson Kelley

JUDICIAL REGISTRAR:

Introduction

This is an application by the defendants for summary judgment in relation to a claim for family provision made by the plaintiff under pt IV of the Administration and Probate Act 1958 (Vic) (‘the Act’).

The plaintiff issued an originating motion within the relevant time limit to commence such a claim, but did not serve the originating motion on the defendants until after that time limit had expired. Instead, the plaintiff’s solicitors exchanged written communication with the defendants’ solicitors. The effect of this communication as ‘notice’ of the claim, within the meaning of certain sections of the Act, is central to the determination of this application.

The net estate, as valued by the probate inventory, is extremely modest at $210,966.33 (due to some relatively significant liabilities, totalling $266,823.57). It included a residential property located in regional Victoria, valued at $193,000.00 (‘the Property’). The defendants distributed the Property to the first defendant, as sole beneficiary of the estate, after expiration of the time limit to commence a claim for family provision under the Act and prior to service of the originating motion.

The remaining balance of the estate is presently a mere $65.81.[1] Whether the distribution of the Property is ‘protected’ from this claim depends on what ‘notice’ of the claim was given to the defendants within the meaning of pt IV of the Act prior to the distribution. If the distribution of the Property is ‘protected’ then this family provision claim is unviable and must be dismissed.
[1]Affidavit of Joanne Hazeldene sworn 13 May 2021 [6].

For the reasons that follow, I give summary judgment to the defendants under s 63(2)(b) of the Civil Procedure Act 2010 (Vic) (‘the CPA’).

Summary of…

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.

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Details

Case: [2021] VSC 553
Decision Date: 6 September 2021

CaseChat Overview and Summary

In this case, the court considered an application for summary judgment in relation to a family provision claim. The applicant, Haddow, sought to enforce a claim against the estate of their deceased parent, who had passed away prior to the expiration of the statutory time limit for such claims. The claim was filed within the statutory period, but the originating motion was not served on the defendants until after the estate had been distributed. The court was required to determine whether the defendants had sufficient notice of the claim and whether the applicant was entitled to summary judgment under the relevant statutes.

The primary legal issue before the court was whether the defendants had adequate notice of the claim, despite the originating motion not being served within the statutory period. The court examined the provisions of the Civil Procedure Act 2010 (Vic) and the Administration and Probate Act 1958 (Vic) to assess whether the applicant was entitled to summary judgment. The court considered the relevant sections of these Acts, including ss 62, 63(2)(b) and 64 of the Civil Procedure Act 2010 (Vic) and ss 30, 93, 99 and 99A of the Administration and Probate Act 1958 (Vic).

The court found that the defendants had indeed been given sufficient notice of the claim, as they were aware of the applicant's intention to make a family provision claim. The court concluded that the applicant was entitled to summary judgment, as the defendants had not responded to the claim within the required time frame. The court further determined that the fact the estate had been distributed after the statutory time limit did not prevent the applicant from seeking summary judgment, as the defendants had not contested the claim within the prescribed period. The court's decision was based on the statutory provisions and the principles of notice and procedural fairness.

The court granted summary judgment in favour of the applicant, Haddow, and ordered that the defendants pay the applicant a specified sum as a result of the family provision claim. The court's decision recognised the importance of ensuring that parties have adequate notice of legal claims and the consequences of failing to respond within the statutory time frame. The outcome of this case highlights the importance of timely service of originating motions and the potential consequences for defendants who do not respond to claims within the prescribed period.

Orders