Steffans v Dagg

[2010] QDC 230

DISTRICT COURT OF QUEENSLAND

CITATION:

Steffans & another v Dagg & another [2010] QDC 230

PARTIES:

RENONA STEFFANS

and

LIALA ARANA SZAWEJKO

(Applicant)

AND

NARISSA FIONA DAGG

and

MEG TARRANT

(Respondent)

FILE NO/S:

2094/07

DIVISION:

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

06 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

05 May 2010

JUDGE:

Reid DCJ

ORDER:

1.   Leave to proceed granted

2.   Extend time for commencing proceedings to 10 October 2007

CATCHWORDS:

SUCCESSION - family provision – Succession Act – extension of time to commence proceedings under s 41(8) – estrangement between an applicant and a testator – leave to proceed – extension of time to commence proceedings -

Succession Act 1981: s 41(8)

COUNSEL:

L. J. Nevison for the applicant

C. Toogood (solicitor) for the respondent

SOLICITORS:

John Joyce Solicitors for applicant

Hatzis Lawyers for respondent

1. This is an application for two orders:

1. An order under the Uniform Civil Procedure Rules for leave to proceed, no step having been taken for a period in excess of two years; and

2. An order for extension of time of one day in which to have brought proceedings pursuant to section 41(8) of the Succession Act.

Facts

1. The applicant's claim is for provision out of the estate of her mother who died on the 9th of March 2007.  In her affidavit of the 9th of October 2007 filed on the 10th of October 2007, she mistakenly asserts that her mother died on the 11th of January.  This belief as to the date of her mother's death is the reason, I infer, why proceedings were commenced then rather than on the 9th of October 2007 as required.

1. The applicant is one of a number of children of the deceased.  The applicant was herself born on the 3rd of September 1962.  Under the terms of the deceased's will made on the 27th of April 2005 the applicant received no benefit.  The estate was directed instead to the respondent, the applicant's sister.

1. The originating application filed on the 10th of October 2007 was supported by an affidavit of the applicant.  Since that time no further steps have been taken in the proceedings over the period of in excess of two years.  This application was filed on the 8th of October and is supported, as I have said, by an affidavit of that same date.  In the affidavit the applicant asserts:

(i)         That she was after October 2007 suffering depression for which she received treatment from a physician, Dr Lock, and a psychologist, Dr Patterson.  This resulted in her having difficulties coping with life's responsibilities.  She required regular medication;

(ii)       She attempted to return to work in February 2008 but within six months ceased as she was unable to cope with the demands of that position.  A further attempt at return to work in January 2009 again failed in August 2009 due to her inability once again to cope;

(iii)      She was under significant financial pressure resulting in she and her husband selling a business in October 2007 for $50,000, being $40,000 less than the initial purchase price, and subsequently selling their home and purchasing a cheaper home in January 2010.  The family income, it seems, is inadequate to meet living expenses and her mortgage responsibilities.

1. In those circumstances, the applicant says that her initial solicitor, after commencing proceedings, forwarded to the respondent or to the respondent's solicitor (it is not entirely clear to me to whom it was sent) a draft directions order on or about the 11th of October 2007 but these were never finalised despite both the applicant and the respondent subsequently being legally represented.  The respondent does not appear to dispute this fact.

1. The applicant says that due to the matters earlier referred to she was insufficiently focused on her litigation to ensure it progressed appropriately and particularly she says her solicitor did not inform her of the steps required to be taken (see paragraphs 21 and 22 of her affidavit).  On the 30th of June 2009, almost two years after commencement of the proceedings, her former solicitor closed her practice and her current solicitors contacted her about providing instructions.

1. Little specific explanation is given as to the reason for the delay between the 16th of July 2009 when her current solicitors first contacted her and the 8th of March when this application was filed.

1. In her affidavit in support of her originating application, the applicant also says that the estate comprised primarily a house which she valued at $320,000 and some minor furniture, a motor vehicle and a small bank account.  She attests to a home life fraught with some difficulty from an early age.  Her father died when she was about nine and for some six months thereafter she says she did not see or hear from her mother but lived with an aunt, Aunt Nance.  When the family was reunited, she says her mother was prone to outbursts of anger and physical assaults which significantly compromised their relationship.  She says she left home at the end of her year 11 school year when she was 16 (this would have been, by my calculation, in about 1978 and not 1974 as attested to in the affidavit).

1. She says she left because her mother was assaulting her without reason or excuse.  Thereafter, the relationship was poor.  So, too, according to the applicant, was that of other children, a number of whom were estranged from her mother at various times.  She says that in the 1980s her mother and the children reunited but once again difficulties in the relationship developed.  From about 1992 or perhaps even earlier, the applicant and her mother were completely estranged.

1. The respondent opposes both applications.  In her affidavit of the 28th of April 2010;

(i)         She says she and her husband have spent countless hours repairing and renovating the house both for her mother and, since January 2008 when they moved in about 12 months after her mother's death, on their own account;

(ii)       She confirms the total estrangement of her mother and the applicant of at least May 1992; and

(iii)      She also asserts a significant financial and personal hardship.

1. The respondent opposes the applications because she asserts the claim is without merit.  She also draws my attention to paragraph 4 of the will which asserts in somewhat colourful language the reasons why the deceased did not allow anything for the applicant in her will.

1. It is clear from the material that there will be significant factual issues to be determined at any trial of this matter, in particular, dealing with the reasons for the estrangement of the applicant and her mother.  It does not appear that the respondent otherwise asserts prejudice as a result of the applicant's delay and does not address the applicant's assertion that the respondent or her solicitor did not revert to the applicant's solicitors concerning the proper directions to be made as a result of draft directions being supplied on the 11th of October 2007.

1. Estrangement between an applicant and a testator can significantly weaken a claim, although where the estrangement has been caused by the deceased the argument against the claimant's claim may be less compelling.  On one view of the evidence it seems the deceased may have been estranged for at least many of her children.  In such circumstances it is my view that the estrangement between the applicant and the deceased in this case might well not result in the claim being rejected, although this is a matter ultimately to be determined by a trial Judge.  (See para 2.9 of Family Provision in Australia, 3rd edition, by John K de Groot and Bruce W Nickel).

1. In the circumstances, it is my view that the discretion that I have ought be exercised in favour of the applicant to give leave to proceed because:

1.          The applicant has some prospects of success because of her financial need and because, on her version of the facts, if accepted as truthful, she would or might be supported in the view that her mother's conduct explained the estrangement between them and might have contributed to the applicant's emotional vulnerability throughout her life. 

2.          The respondent does not assert that her presentation of the case has been compromised by the delay in the matter since October 2007.  Her assertion that she and her husband have spent time and money on the house is a matter that a Court is entitled to take into account in the final determination of the matter. 

3.          The delay is significantly attributable to the applicant's solicitor's dilatory conduct and, insofar as the applicant is responsible, is at least partly explained by her psychological upset and financial position. 

4.          To deny the application would effectively preclude the applicant's right to have the material legally determined. 

5.          There is no specific disobedience of Court orders.

1. Furthermore, in circumstances where the applicant has commenced proceedings on the 10th of October 2005, and this was clearly in circumstances where she mistakenly believed that her mother had died on the 11th of October 2007, rather than the 9th of October 2007 as was the fact, and where no prejudice has resulted to the respondent by that delay, I also extend time for commencing proceedings to the 10th of October 2007 pursuant to section 41(8) of the Act.