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Vasconelos v Bonetig

Vasconelos v Bonetig

Case [2011] NSWSC 1029 19 August 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Vasconelos v Bonetig [2011] NSWSC 1029
Hearing dates: Friday, 19 August 2011
Decision date: 19 August 2011
Jurisdiction: Equity Division
Before: White J
Decision:
Order that the summons be dismissed with costs.

Catchwords: SUCCESSION - family provision - claim by daughter of deceased - estate fully distributed to defendant - application under Family Provision Act, s 16 for extension of time to apply for provision out of estate - ascertaining whether there is sufficient cause for application being made out of time - sufficient cause not established
Legislation Cited: Succession Act 2006
Family Provision Act 1982
Wills, Probate and Administration Act 1898
Cases Cited: De Winter v Johnstone (New South Wales Court of Appeal, 23 August 1995, unreported, BC9505226)
Burton v Moss [2010] NSWSC 163
Campbell v Chabert-McKay [2010] NSWSC 859
John v John [2010] NSWSC 937
Popovski v Kenjar [2011] NSWSC 731
Category: Principal judgment
Parties: Elizabeth Vasconelas (Plaintiff)
Erminio Aldo Bonetig (Defendant)
Representation: J Wilson (Plaintiff)
J Loxton (Defendant)
Hennikers Solicitors (Plaintiff)
Bussoletti Lawyers (Defendant)

File Number(s): 2011/109667

Judgment

HIS HONOUR : By her summons, the plaintiff claims an order pursuant to s 59 of the Succession Act 2006 that provision be made for her maintenance, education and advancement in life out of the estate, or notional estate, of Aida Sabaz Bonetig, late of Vermont Road, Warrawong. She also seeks an order that the time for making the application be extended up to and including the time of filing the summons.

The deceased died on 14 December 2001. The summons was filed on 31 March 2011. Although the summons seeks an order under s 59 of the Succession Act , that Act does not apply. The application has been treated as an application for an order for provision pursuant to s 7 of the Family Provision Act 1982.

Section 16(2) of the Family Provision Act provides:

" An order under section 7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the Court may, having regard to all the circumstances of the case but subject to subsection (3), by order, allow. "

The prescribed period was 18 months after the death of the deceased. Subsection (3) provides:

" (3) The Court may not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the end of the prescribed period unless:

...

(b) sufficient cause is shown for the application not having been made within that period. "

On 2 August 2011 the Registrar listed for hearing the plaintiff's claim in paragraph 2 of the summons for an order extending the time for the making of the application. That is an unusual course. In De Winter v Johnstone (New South Wales Court of Appeal, 23 August 1995, unreported, BC9505226) Powell JA said that an application for an extension of time was invariably dealt with…

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 Vasconelos v Bonetig

Details

AGLC: Vasconelos v Bonetig [2011] NSWSC 1029
Case: [2011] NSWSC 1029
Decision Date: 19 August 2011

CaseChat Overview and Summary

The case of Vasconelos v Bonetig involved a dispute over family provision claims under the Family Provision Act 1969 (NSW). The deceased, Mr Vasconelos, left his entire estate to his son, Mr Bonetig, excluding his daughter, Ms Vasconelos. Ms Vasconelos applied for an extension of time to make a claim under the Family Provision Act, arguing that she had not realised the full extent of her father's estate until after the statutory time limit for making a claim had passed. The primary legal issue was whether there was sufficient cause for the application being made out of time.

The court considered the relevant statutory provisions and case law to determine whether Ms Vasconelos had established sufficient cause for the late application. The court examined whether Ms Vasconelos had acted with reasonable promptness and diligence in making the application and whether there were any exceptional circumstances that warranted an extension of time. Ultimately, the court found that Ms Vasconelos had not established sufficient cause for the delay, and her application was dismissed. The court held that Ms Vasconelos had failed to demonstrate that she had acted with reasonable promptness and diligence, and there were no exceptional circumstances that warranted an extension of time.

The court's decision in this case reinforces the importance of acting promptly and diligently when making a claim under the Family Provision Act. The court emphasised that the statutory time limit for making a claim is strict and that extensions of time will only be granted in exceptional circumstances. The court also noted that the onus is on the applicant to establish sufficient cause for the delay, and that mere ignorance or oversight is not sufficient to warrant an extension of time. The final orders of the court were that Ms Vasconelos's application for an extension of time be dismissed, and that no order be made as to costs.

Orders