Re Ross; Ross v Vallance - [2022] VSC 593

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2021 02587

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

- and –

IN THE MATTER of the Will and Estate of UWE ROSS, deceased

BETWEEN:

MARK SHANE ROSS	Plaintiff
v
LACHLAN VALLANCE (WHO IS SUED AS THE ADMINISTRATOR OF THE ESTATE OF UWE ROSS, DECEASED)	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2022 (application); further hearing dates regarding evidentiary issue: 10 June 2022, 10 August 2022
DATE OF RULING:	5 October 2022 (revised)
CASE MAY BE CITED AS:	Re Ross; Ross v Vallance
MEDIUM NEUTRAL CITATION:	[2022] VSC 593

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TESTATOR’S FAMILY MAINTENANCE — Application for extension of time — Ignorance of right to claim relief — Whether it is in the interests of justice to extend time — Whether the plaintiff’s explanation for the delay is satisfactory — Whether the delay causes significant prejudice — Whether the plaintiff’s claim has a prospect of success — Application granted — Administration and Probate Act 1958 (Vic) s 99 — Ansett v Moss [2007] VSC 92 — Sheppard v Heathcote (No 3) [2010] VSC 190 — Maher v Maher [2019] VSCA 161 — Paola v State Trustees Ltd [2012] VSC 158 — Re Guskett [1947] VLR 212.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A P Dickenson	Hentys Lawyers
For the Defendant	Mr R C Wells	Hicks Oakley Chessell Williams Pty Ltd

TABLE OF CONTENTS

Evidence............................................................................................................................................... 1

Procedural history.............................................................................................................................. 1

Background......................................................................................................................................... 1

The will................................................................................................................................................ 2

The plaintiff’s reasons for late application for a family provision order............................... 3

Assessment of the plaintiff’s evidence.......................................................................................... 5

Reasons for the delay – administrator’s submissions on the plaintiff’s evidence 5
Reasons for the delay – assessment of the plaintiff’s evidence....................... 7
The plaintiff’s financial situation – administrator’s submissions on the plaintiff’s evidence................................................................................................ 10
The plaintiff’s financial situation – assessment of the plaintiff’s evidence.. 10

Plaintiff’s submissions................................................................................................................... 12

Length of delay..................................................................................................... 13
Prejudice................................................................................................................ 13
Reasons for the delay........................................................................................... 13
Interests of justice................................................................................................. 14

Administrator’s submissions......................................................................................................... 15

Reasons for the delay........................................................................................... 15
No prospect of success in family provision claim........................................... 16
Prejudice................................................................................................................ 16
Interests of justice................................................................................................. 16

Applicable principles...................................................................................................................... 17

Analysis.............................................................................................................................................. 18

Conclusion......................................................................................................................................... 19

HER HONOUR:

The plaintiff seeks an extension of time. He wishes to apply for additional distribution from the estate of his late father. His application is approximately 20 months late. I will extend time for the reasons outlined here.

Evidence

The plaintiff gave oral evidence and was cross‑examined. Key parts of his oral evidence are outlined below. The plaintiff relies on his affidavits sworn on 13 December 2021 (‘first plaintiff affidavit’) and 28 February 2022 (‘second plaintiff affidavit’), together with the affidavit of George Patrick Tabet, law clerk, sworn on 13 May 2022. The plaintiff relies too on his position statement dated 5 October 2021 (‘plaintiff’s position statement’).[1]
[1]The plaintiff references and exhibits the position statement in his first affidavit: see Exhibit ”MSR-01”…

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 Re Ross; Ross v Vallance

Details

AGLC: Re Ross; Ross v Vallance [2022] VSC 593
Case: [2022] VSC 593
Decision Date: 5 October 2022 (revised)

CaseChat Overview and Summary

The case of Re Ross; Ross v Vallance involved the plaintiff, Ross, seeking an extension of time to bring a claim for maintenance under the Administration and Probate Act 1958 (Vic). The dispute arose from the estate of the deceased, Ross's father, who had died leaving a will that did not provide for Ross. Ross sought maintenance from the estate, arguing that the will was unjust due to his father’s failure to provide for him. The court was asked to decide whether the plaintiff’s delay in bringing the claim was justifiable and whether it was in the interests of justice to grant the extension.

The court was required to consider several legal issues, including whether Ross was unaware of his right to claim maintenance, whether the explanation for the delay was satisfactory, and whether the delay caused significant prejudice to the estate. Additionally, the court had to assess whether Ross’s claim had a prospect of success. The court referenced several precedents, including Ansett v Moss, Sheppard v Heathcote, Maher v Maher, Paola v State Trustees Ltd, and Re Guskett, to guide its decision on these matters.

The court concluded that Ross’s ignorance of his right to claim maintenance was genuine, and his explanation for the delay was satisfactory. The court found that there was no significant prejudice to the estate due to the delay, and Ross's claim had a reasonable prospect of success. The court balanced these considerations and determined that it was in the interests of justice to grant the application for an extension of time. The court's decision was informed by the principles of equity and the need to ensure fair treatment of all parties involved.

The final orders of the court granted the plaintiff’s application for an extension of time to bring the claim for maintenance. The court directed that the claim be heard on its merits, allowing Ross the opportunity to present his case for relief from the estate. The court’s decision emphasised the importance of considering the individual circumstances of each case when determining whether to extend the statutory time limits for bringing claims.

Orders