Younan v Younan
[2015] VSC 258
•3 June 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S CI 2015 01637
IN THE MATTER OF Part IV of the Administration and Probate Act 1958
and
IN THE MATTER of the Estate of GEORGE SHABO YOUNAN, deceased
| MONA YOUNAN | Plaintiff |
| v | |
| JOSEPH GEORGE YOUNAN and AKRAM YOUNAN (who are sued as the executors of the estate of George Shabo Younan, deceased) | Defendants |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 June 2015 |
DATE OF JUDGMENT: | 3 June 2015 |
DATE OF WRITTEN REASONS: | 4 June 2015 |
CASE MAY BE CITED AS: | Younan v Younan and anor |
MEDIUM NEUTRAL CITATION: | [2015] VSC 258 |
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FAMILY PROVISION – whether application for further provision brought within time – meaning of ‘within six months after the date of the grant of probate’ – De Angelis v De Angelis [2003] VSC 83 considered and distinguished – application held to be one day late and originating motion set aside - s 99 and s 101 Administration and Probate Act 1958 (Vic) – s 44 Interpretation of Legislation Act 1984 (Vic)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Catlin | Marshalls + Dent |
| For the Defendants | Mr J O’Bryan | Holding Redlich |
HER HONOUR:
By originating motion filed 14 April 2015 the plaintiff, who is the daughter of the deceased, sought provision or further provision[1] from his estate pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (‘the Act’).
[1]It is not stated in the originating motion whether or not any provision is made in the will for the plaintiff. The Outline of Submissions on behalf of the Defendants states that the deceased left the whole of his estate to the defendants, his two sons.
By summons filed 24 April 2015, the defendants sought pursuant to r 8.09(a) of the Supreme Court (General Civil Procedure) Rules 2005 that the originating motion be set aside. The defendants assert that the originating motion was filed one day out of the time prescribed by s 99 of the Act. The defendants’ application was opposed.
I found for the defendants on the return date of their summons, 3 June 2015, and gave very brief reasons at that time. I indicated that I would give written reasons. These are those reasons.
There is no dispute that the deceased died on 15 August 2013 and that probate of his last will was granted to the defendants on 13 October 2014. Section 99 of the Act is found within Part IV of the Act. Both parties in their written material proceeded on the basis that s 99 as amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (‘2014 amendments’) applied. As noted at the hearing, I do not consider that correct. The 2014 amendments principally amended the substantive provisions relating to family provision. The amendment to s 99 were by way of reformulation, rather than substantive change. The 2014 amendments, including the reformulation of s 99, have commenced, but by force of the transitional provisions[2] they only apply in respect of the estate of persons who die after 1 January 2015. Accordingly, it is the former formulation of s 99 that applies to this estate. The reformulation substituted by the 2014 amendments does not, as noted, change the substance of the section in relation to the time within which an application for family provision must be made.
[2]Section 101 of the Act, inserted by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014.
Section 99 in the formulation which applies to this estate relevantly provides as follows:
No application shall be heard by the Court at the instance of a party claiming the benefit of this Part unless the application is made within six months after the date of the grant of probate of the will or of letters of administration (as the case may be)…
The section continues so as to provide for an application for extension of time in certain circumstances. No application for extension of time or application to amend the originating motion so as to make such application is before me.
The defendants and plaintiff agree that the time period prescribed by s 99 commences to run from the day after the date of the grant of probate, and so in this case from 14 October 2014. They agree that this comes about by reason of s 44(1) of the Interpretation of Legislation Act 1984 (Vic) (‘Interpretation Act’) which provides:
Where in an Act or subordinate instrument a period of time is expressed to begin on, or to be reckoned from, a particular day, that day shall not be included in the period.
The parties also agree that by reason of s 44(6)(b) of the Interpretation Act the reference to ‘six months’ in s 99 of the Act is a reference to six calendar months.
Where the parties differ is as to the end date of the six months. The defendants contend that the period of six months that commenced to run from 14 October 2014 ended on 13 April 2015, i.e. one day before the originating motion was filed. However, the plaintiff contends on the basis of a decision of Justice Mandie of this Court in De Angelis v De Angelis,[3] (‘De Angelis’) that the six month period ended on 14 April 2015, the date on which the originating motion was filed.
[3][2003] VSC 83.
In De Angelis, his Honour was concerned to decide whether an application for further provision filed on Monday, 2 October 2000 was within time. The grant of probate in that case was on 30 March 2000. The case turned on the question as to the effect of the period of six months ending on a non‑business day. His Honour considered the effect of s 44(3) of the Interpretation Act. That sub‑section provided at that time as follows:
Where the time limited by an Act or subordinate instrument for the doing of any act or thing expires or falls on a day that is a holiday, the time so limited shall extend to, and the act or thing may be done, on the day next following that is not a holiday.
For the purposes of that sub‑section, s 44(4) provided that holiday means not only a day appointed as a public holiday but also a Saturday or Sunday. The provisions are in substantially the same form now.
His Honour held that s 44(3) of the Interpretation Act applied to the time limit specified in s 99 of the Act. This was the ratio of the case. In reaching this decision, Mandie J proceeded on the basis that:
Six calendar months after the date of the grant of probate expired on Sunday 1 October 2000, and again I think it is common ground that that is prima facie appropriate measure of the time permitted by s 99.[4]
[4]Ibid at [2].
On the basis that the last day of the six month period fell on a Sunday, the six month time period did not expire until the next non ‘holiday’ day which was Monday 2 October 2000, on which day the originating motion had been filed.
The plaintiff here relies on that finding and says that by parity of reasoning the limitation period in this case expired not on 13 April 2015 but on the next day, 14 April 2015.
In my view, De Angelis is distinguishable. The ratio of the case turns on quite a different issue to the one before this Court. De Angelis turns on the application of s 44(3) where the last day of the six month period falls on a weekend. That question does not arise in the case before me.
It is also apparent from the whole of his Honour’s reasons, including the portion quoted above, that there was no dispute between the parties that the six month period expired on 1 October 2000. It was not necessary for Mandie J to decide a disputed issue as to the expiration date. Counsel for the defendants submits that in fact the six month time period in De Angelis, properly calculated, began on 31 March 2000 and expired on 30 September 2000, being six calendar months thereafter. I consider that correct. It appears then that in asserting or accepting that Sunday, 1 October 2000 was the last day of the six month period the parties were incorrect, and Mandie J considered the disputed issue in the case on that incorrect basis. The error was, however, immaterial as the same result would have flown whether the last day was Saturday 30 September or Sunday 1 October 2000.
The defendants’ calculation as to the end date in this case proceeds as a matter of simple computation, commencing on the day after the grant of probate and ending six calendar months thereafter. They also rely on authority, Re Toyo Pulp Co Limited v Deputy Commissioner of Patents[5] (‘Re Toyo’). That case concerned quite a different factual situation, being there the time within which a patent for an invention of lesser scope than originally sought may be accepted by the Commissioner of Patents. The time period specified for such an acceptance was similarly expressed, however, to the expression of the time limit in s 99 of the Act, in that the latest time for acceptance of such an application was 21 months after the date on which the examiner’s first report on the original application was sent to the applicant. Section 22 of the Commonwealth Acts Interpretation Act 1901 required, as does s 44 of the Victorian Interpretation Act, reference to a ‘month’ to be read as reference to a calendar month.
[5](1978) 2 ALD 177.
The date on which the first report was sent to the applicant was 22 May 1975. The Administrative Appeals Tribunal constituted by Davies J held that the period of 21 months after that date expired at midnight on 22 February 1977 because ‘such computation gives a full period of 21 calendar months excluding any part of 22 May 1975’.[6]
[6]Ibid, at 179.
In reaching his conclusion, Davies J relied on the remarks of Gibbs J in Forster v Jododex Australia Pty Limited[7] (‘Forster’). That case related to the term of a licence which ran ‘for the term of 12 months from the date hereof’. Gibbs J in Forster held that:
Where the term of a lease is expressed to commence ‘from’ a specified day, the term will, prima facie, commence at midnight on the day specified, and will last during the whole anniversary of the day from which it began.[8]
[7](1972) 127 CLR 421.
[8]Ibid, at 440-441.
In Toyo Pulp it was necessary for the court to decide the precise end date calculated by reference to calendar months. In De Angelis it was not, as there was apparently no dispute on the point, and whether the end date was the Saturday or the Sunday was immaterial. Although Toyo Pulp concerns quite a different factual situation, in my view the analysis there exposed and the ratio of that case is on point when the ratio of De Angelis is not. Toyo Pulp supports the defendants’ proposition that the last day of the six month period in this case was 13 April 2015. To find that it ended the next day, on 14 April 2015 as the plaintiff contends, would be to add an extra day to the six calendar months.
I conclude that both by mathematical calculation and by parity of reasoning from authority where it was necessary to decide the point, the six month period provided for by s 99 of the Act commenced in this case on 14 October 2014 and ended on the last day six calendar months thereafter which was 13 April 2015.
It follows that the originating motion was filed out of time. It is for these reasons that I made the order setting aside the originating motion, as sought by the defendants, on the return of their summons. The plaintiff did not seek to be heard in opposition to the other order sought by the defendants, being for costs.
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