Re Winter-Cooke

In this case, the plaintiff sought to commence proceedings out of time under the Testators Family Maintenance Act 1965. The defendants opposed the application, arguing that the application had no reasonable prospect of success due to the existence of prior deeds of compromise that settled all claims between the parties. The matter was heard and determined by Justice Forrest of the Supreme Court of Victoria. The primary issue before the court was whether the deeds of compromise were binding on the plaintiff and, if so, whether they precluded the plaintiff from proceeding with the application. Additionally, the court had to determine if the plaintiff had any prospect of success given the existence of these deeds.

The court examined the deeds of compromise and concluded that they were not binding on the plaintiff due to the presence of undue influence and unconscionable conduct during their execution. The court found that the plaintiff did not have independent legal advice at the time the deeds were executed and that the circumstances surrounding their execution were such that the court could not be satisfied that they were entered into fairly and voluntarily. Given these findings, the court determined that the plaintiff had a real prospect of success in establishing the unenforceability of the deeds and, consequently, in proving their entitlement to commence the application out of time.

As a result of the court's determination that the deeds were not enforceable due to undue influence and unconscionable conduct, the application for summary dismissal was dismissed. The court held that the plaintiff had demonstrated a reasonable prospect of success in their application and that the defendants' arguments regarding the enforceability of the deeds were not sufficient to warrant a summary dismissal.

The final order of the court was that the application for summary dismissal by the defendants was dismissed, and the plaintiff's application to commence the testators family maintenance proceeding out of time was allowed to proceed. The court did not make any orders regarding costs.