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Zirkler v McKinnon

Zirkler v McKinnon

Case [2002] NSWSC 285 12 April 2002

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CITATION: ZIRKLER v McKINNON [2002] NSWSC 285

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2938/2000

HEARING DATE(S): 18/02/2002

JUDGMENT DATE: 12 April 2002

PARTIES :

ZOEE ASHWIN ZIRKLER & WARREN ZIRKLER BY THEIR TUTOR BARBARA JAN JONES v CAROL ANNE McKINNON

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr R.D. Wilson for plaintiffs
Mr M. Willmott for defendant

SOLICITORS: Michael Dennis, Armidale for plaintiffs
Everingham Solomons, Tamworth, for defendant

CATCHWORDS: Family Provision. Application by infant children under Family Provision Act 1982 out of time. Consideration of factors to be taken into account for the purposes of s16 (2) and (3) of the Act. Decision by tutor on legal advice not to bring a claim and a change of heart after another family member succeeds in a claim. Extension of time refused and summons dismissed.

DECISION: Paragraph 59

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Friday 12 April 2002

2938/2000 ZOEE ASHWIN ZIRKLER AND WARREN ZIRKLER – BY THEIR TUTOR BARBARA JAN JONES v CAROL ANNE McKINNON – ESTATE OF FRANCES CHARLES ZIRKLER

JUDGMENT

1 MASTER: This is an application under the Family Provision Act 1982 in respect of the estate of the late Francis Charles Zirkler who died on 14 December 1996 aged in his sixties. The deceased was survived by his daughter, the defendant, a son Craig, and a daughter, Frances, all of whom are children of the deceased’s former wife who also survived him. The two plaintiffs are his children from a de facto relationship the deceased had with Barbara Jan Jones who is their tutor in these proceedings.

2 By his will made 28 November 1989 the deceased left the whole of his estate to his daughter Carol Anne McKinnon and appointed her sole Executix.

3 The estate of the deceased for probate purposes was valued at a net figure of $195,726. The major asset in the estate was a small property at Tintinhull Road, Kootingal, north of Tamworth valued at $186,000. The property has been distributed to the defendant as a beneficiary by an application which was made in March 1998. The parties are agreed that the property has a present value of $180,000.

4 Both parties have incurred costs in this matter. The plaintiffs’ costs are estimated at $17,892 and those of the defendant’s at $18,000. These total $35,892. In order to understand the complications in this matter it is necessary to set out a little of the history of the family and of the steps taken in both these proceedings and other proceedings brought in the District Court by one of the deceased’s sons, Craig.

5 The evidence does not disclose when the deceased was born nor any details of the marriage that he had with his former wife. The deceased and the plaintiffs’ tutor, Barbara Jan Jones, commenced to live together in a de facto relationship in 1981. Their daughter, Zoee, was born on 18 November 1986 and their son, Warren, was born on…

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 Zirkler v McKinnon

Details

AGLC: Zirkler v McKinnon [2002] NSWSC 285
Case: [2002] NSWSC 285
Decision Date: 12 April 2002

CaseChat Overview and Summary

The case of Zirkler v McKinnon involved the infant children of the deceased, who sought to make an application under the Family Provision Act 1982 out of time. The Federal Circuit Court was tasked with deciding whether the children's application should be allowed despite being filed beyond the statutory deadline. The court had to consider whether the children had a sufficient justification for the delay and whether the application had reasonable prospects of success. The children argued that their tutor had made a decision on legal advice not to bring a claim, but later changed their mind after another family member successfully made a claim.

The court considered various factors, including the age of the children, the delay in filing the application, and the reasons provided for the delay. The court also examined the prospects of success of the application, considering the evidence and arguments presented. In determining whether to extend the time for the application, the court balanced the competing considerations of procedural fairness and the need to prevent abuse of the court process. The court concluded that the delay was not sufficiently justified and that the application had little prospect of success.

As a result, the court refused to extend the time for the children's application and dismissed the summons. The court held that the children had not demonstrated exceptional circumstances that warranted an extension of time, and that the delay had prejudiced the other parties involved. The court also found that the children's application was unlikely to succeed on the merits, as there was insufficient evidence to support their claims. The decision highlights the importance of timely applications under the Family Provision Act and the need for applicants to demonstrate good reasons for any delay in filing their claims.

Orders