Plaintiff v Defendant

(a) The defendant's application by summons filed on 19 May 2025 seeking summary dismissal of the plaintiff's Part IV claim pursuant to s 99(1) of the Administration and Probate Act 1958 (Vic) ('AP Act') or alternatively, s 63(2)(b) of the Civil Procedure Act 2010 (Vic) ('CPA'), and Order 22 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules'), on the basis that it was filed out-of-time and has no prospects of success.[1]

(b) The plaintiff's application by summons filed on 29 July 2025 seeking to amend his Originating Motion ('OM') to apply for an extension of time for provision pursuant to r 36.01 of the Rules.

(a) affidavits of Ivor Harold Nyman affirmed on 9 July 2025 and 17 July 2025; and

(b) written submissions filed on 17 July 2025.

(a) affidavits of Steven Mark Hopper affirmed on 19 May 2025 and 24 July 2025; and

(b) written submissions filed on 24 June 2025 and 24 July 2025.

1. The deceased was survived by his three adult children: the plaintiff, Paul and the defendant. The deceased left his estate solely to the defendant. Probate of the Will was granted to the defendant on 12 July 2024. By operation of s 99(1) of the AP Act, the time for a Part IV application to be made expired on 13 January 2025.
2. On various occasions between May 2024 and January 2025, the plaintiff and his solicitor communicated with the defendant indicating an awareness of the timeframes within which an application for provision could be made and stated that the plaintiff would make such an application. Those communications included:

(a) an email on 24 May 2024 from the plaintiff to the defendant commenting on the timeframes for an application;

(b) on about 6 November 2024, the plaintiff emailed the defendant legal advice he had received which stated, 'given the time frames involved in challenging a will, we will need to commence proceedings soon'; and

(c) the defendant submits that on 12 December 2024, 'formal notice of [the plaintiff's] claim was given, noting that an informal agreement between the parties could not be reached, [the plaintiff] "will and must file proceedings in the Supreme Court of Victoria very early in the new year to protect his position."'

1. There is also evidence that, in late 2024, the plaintiff and defendant were negotiating a resolution of the plaintiff's claims on the estate. The plaintiff's solicitor produced a screenshot of a text message from the defendant to the plaintiff received on 7 October 2024 which states:

I promise you Malcolm, I have not and will not go back on my word ... I didn't ask Steven to draw up or start a deed of variation until the last week of September ... he was away then and he did say when he gets back (this week) he will be drawing it up.

This text indicates that an agreement of sorts may have been reached although details are unclear. On 16 December 2024, the defendant's solicitor wrote to the plaintiff's solicitor enquiring as to the quantum of the plaintiff's claim. The plaintiff's solicitor

responded on the same day. No response was received to that email prior to the plaintiff's solicitors' offices closing on 23 December 2024 for the Christmas break.

1. On 10 January 2025, the plaintiff's solicitor returned to work and found that no deed had been provided. On the same day, he received instructions to file an application for provision. Thereafter, he explains that he sought relevant probate documents and endeavoured to finalise the application. For various administrative reasons, including unfamiliarity with relevant processes, the application was not filed on time.
2. On 7 February 2025, the plaintiff filed an OM seeking provision from the deceased's estate. This application was filed out-of-time and did not expressly seek leave to make the application out-of-time. The plaintiff's solicitor explains that he was aware that the application had been filed out-of-time but did not realise that 'best practice' would have been to seek an extension of time in the relief sought.
3. Further, the plaintiff relies on his affidavit sworn on 5 February 2025 in which he explains the basis of his application for provision.
4. In his affidavit affirmed on 19 May 2025, the defendant's lawyer, Mr Steven Hopper, deposes that this correspondence between the defendant's and plaintiff's solicitors indicates that the plaintiff's solicitors were well-aware of the timeframes within which an application must be made but failed to comply. The defendant submits that because of this knowledge, the plaintiff's application for provision must be dismissed.

1. The inventory of assets and liabilities dated 26 June 2024 records a net value of the estate of $1,181,961.62. The estate was comprised of:

(a) property at Unit 1/13 Webb Street, Seaford, Victoria worth $550,000;

(b) a bank account containing the amount of $62,490.55;

(c) a car valued at $17,000;

(d) entitlement to the estate of Edward Murphy valued at $125,000;

(e) superannuation in the amount of $263,471.07; and

(f) shares with an estimated value of $165,000.

(a) on 30 August 2024, the property was transferred to the defendant in her personal capacity;

(b) in August 2024, the shares were transferred to the defendant; and

(c) in September 2024, the car was transferred to the defendant.

1. In his affidavit affirmed on 24 July 2025, Mr Hopper, lists the amounts that were deposited into the defendant's solicitors' trust account as follows:

(a) 29 August 2024 - the sum of $63,659.89, being the proceeds of the deceased's bank account held with Bendigo Bank;

(b) 4 October 2024 - the sum of $130,414.29, being the value of the deceased's interest in the estate of the late Edward Murphy; and

(c) 21 January 2025 - the sum of $15,501.67 of dividends from a company in the estate. As the shares had previously been transferred to the defendant, the sum of the dividends belong to the defendant and not the estate.[2]

1. On 20 October 2024, legal costs amounting to $16,674.24 were paid from the trust account to the defendant's solicitors. On 21 May 2025, the defendant paid Counsels' legal costs of $2,552. On 20 September 2024, the defendant instructed her solicitors to pay her mother $2,599 for the reimbursement of the deceased's funeral costs.
2. The following cash distributions (totalling $165,000) have been made to the defendant:

(a) 6 September 2024 - $20,000;

(b) 10 October 2024 - $15,000;

(c) 15 November 2024 - $20,000;

(d) 3 December 2024 - $10,000;

(e) 21 January 2025 - $2,000;

(f) 4 April 2025 - $2,000;

(g) 14 April 2025 - $10,000;

(h) 2 May 2025 - $6,000;

(i) 6 May 2025 - $5,000; and

(j) 15 May 2025 - $75,000.

1. Mr Hopper states that currently $22,372.23 remains held in trust. However, as this money includes share dividends of $15,501.17 on shares already distributed to the defendant, the amount of $6,871.06 remains available for claim.[3] Mr Hopper anticipates that the defendant will incur $30,000 (exclusive of GST) for legal costs in relation to this proceeding.

1. The defendant submits that the plaintiff's claim should be summarily dismissed on the basis that:

(a) the plaintiff's application was made out-of-time pursuant to s 99(1) of the AP Act, and the plaintiff did not apply for an extension of time pursuant to s 99(2) of the AP Act; and

(b) even if the defendant makes an application for an extension of time, the operation of s 99(4) precludes the Court from interfering with any distribution made prior to the making of an application to extend. As the majority of the estate has been distributed in accordance with the Will, there remains a limited pool of assets from which the Court could order provision. In these circumstances, if the plaintiff made an application to extend, the application would have 'no real prospects of success' and ought to be summarily dismissed pursuant to s 63 of the CPA and Order 22 of the Rules.

(a) the OM included, by necessary implication, an application to extend time to bring the claim;

(b) alternatively, leave should be granted to amend the OM to include an application for an extension of time as it was omitted in error, but was clearly necessary; and

(c) if either of the above two submissions are successful, then the summary dismissal application should fail as the claim has real prospects of success. The plaintiff submits that an amendment would operate from the date of the original document so that distributions made after that date would not be precluded by s 99(4) from the estate for the purposes of a provision claim.

(a) Does the OM include, by necessary implication, an application for leave to file out-of-time?

(b) If not, should leave be granted to amend the OM to seek an extension of time?

(c) Should the plaintiff's application be summarily dismissed?

90A Eligible person may apply for family provision order

(1) Subject to subsection (2), an application for a family provision order may be made to the Court by, or on behalf of, an eligible person.

(2) An application under subsection (1) must be made -

(a) within the time specified in section 99; and

(b) otherwise in accordance with this Part and the Rules.

99 Time within which application may be made

(1) An application to the Court for a family provision order must be made within 6 months after the date of the grant of probate of the will or of letters of administration, as the case may be.

(2) Despite subsection (1), on application, the Court may extend the period for making an application for a family provision order if, after hearing such of the parties affected as the Court thinks necessary, the Court considers it appropriate to extend the period, including in any case where the time for making an application has already expired.

(3) An application for extension under subsection (2) must be made before the final distribution of the estate.

(4) The making of an application for extension under subsection (2) and any order of the Court in relation to the application for extension does not disturb or affect the distribution of any part of the estate made prior to the making of that application.[4]

1. The Supreme Court (Administration and Probate) Rules 2023 (Vic) ('Chapter III Rules') provide:

Chapter I of the Rules of the Supreme Court for the time being in force and the general practice of the Court apply in relation to a proceeding to which these Rules apply so far as practicable except so far as is otherwise provided by these Rules or any Act.[5]

1. The Chapter III Rules do not contain any provisions relating to the content of originating processes generally or applications for extensions of time, therefore the General Civil Procedure Rules apply. The Rules relevantly provide:

5.05 Indorsement of claim on motion

_An originating motion shall specify - _

(a) the relief or remedy sought and the Act, if any, under which the claim is made; and

(b) where it includes any question to be answered, the question shall be stated.[6]

13.02 Content of pleading

(1) _Every pleading shall - _

(a) contain in a summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved;

(b) where any claim, defence or answer of the party arises by or under any Act, identify the specific provision relied on; and

(c) state specifically any relief or remedy claimed.[7]

1. Rule 59.01 of the Rules permits the Court to grant relief not specified in the originating process 'on the application of the party.' The Rules provide:

The Court, at any stage of a proceeding, on the application of any party, may give such judgment or make such order as the case requires notwithstanding that the judgment or order had not been sought in the originating process or other document of the party in the proceeding.[8]

1. Accordingly, the Court has power to grant relief specifically claimed in the originating process, or, if not claimed, then on the application of a party.
2. In relation to amendment, r 36.01 of the Rules provides:

(1) For the purpose of -

(a) determining the real question in controversy between the parties to any proceeding; or

(b) correcting any defect or error in any proceeding; or

(c) avoiding multiplicity of proceedings -

the Court, at any stage, may order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.

(a) originating process;

(b) an indorsement of claim on originating process; and

(3) An indorsement of claim or pleading may be amended under paragraph (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding.

(6) Notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, the Court may make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of that party's claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.[9]

1. In relation to when an application is made, r 46.02 provides:

(1) An application made on notice to any person shall be by summons, unless the Court otherwise orders.

(2) An application by summons is made when the summons is filed.

(3) An application not by summons is made when it comes on for hearing.[10]

1. The Court retains a general power to dispense with the requirements of the Rules. Rule 2.04 provides:

(1) The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

1. After the hearing had concluded, the Court requested further submissions on the case of Green v Ellul which had not been raised at the hearing.[11] The defendant filed further submissions on 24 October 2025, but the plaintiff did not file any further submissions. Green v Ellul is relevant as the facts are almost identical to the present case. The facts are as follows:

(a) On 12 January 2017, probate of Mary Ellul's will was granted to her executors.

(b) On 10 April 2017, the plaintiffs put the executors on notice of a potential claim for provision against the estate. The Inheritance (Family Provision) Act 1972 (SA) ('Inheritance Act') required such an application to be filed within six months.

(c) On 10 July 2017, the plaintiffs filed their application for provision ('10 July Summons'). The application was filed one day out-of-time and did not seek an extension of time. The relief sought was for provision, costs and 'such further or other order as this Honourable Court deems fit.'

(d) On 13 July 2017, the plaintiffs served the 10 July Summons on the executors.

(e) Between 14 and 26 July 2017, the executors, knowing the claim was issued out-of-time, distributed all but $5,023.46 of the estate.

(f) On 18 September 2017, the plaintiffs filed an amended summons that expressly included an extension of time.

1. The following issues were raised in Green v Ellul:

(a) Whether the 10 July Summons served on 13 July was 'an application for an extension of time' within the meaning of ss 8(4) and 8(5) of the Inheritance Act.

(b) Whether the amendment to the 10 July Summons by way of filing a second summons on 18 September 2017 had the effect of making the 10 July Summons an 'application for extension of time' within the meaning of those provisions.

(c) Whether the 10 July Summons conveyed to the appellants that the respondents made an application for an extension of time under the Inheritance Act.

(d) Whether any part of the estate was distributed before any application for an extension of time within the meaning of subs 8(5) of the Inheritance Act.[12]

1. The applicable legislation in Green v Ellul was substantially similar to the relevant provisions under the Chapter III Rules. Section 8 of the Inheritance Act provides:

(1) Subject to this section, an application shall not be heard by the Court at the instance of a person claiming the benefit of this Act unless the application is made within six months from the date of the grant in this State of probate of the will, or letters of administration of the estate, of the deceased person.

(2) The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time for making an application for the benefit of this Act.

(3) An extension of time granted pursuant to this section may be granted -

(a) upon such conditions as the Court thinks fit; and

(b) whether or not the time for making an application pursuant to subsection (1) of this section has expired.

(4) An application for extension of time pursuant to this section shall be made before the final distribution of the estate.

(5) Any distribution of any part of the estate made before the application for extension of time shall not be disturbed by reason of that application or any order made thereon.

(6) An application for the benefit of this Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate.[13]

1. Consideration was also given to the terms of the Supreme Court Civil Rules 2006 (SA).[14]
2. The Master determined that the service of the plaintiffs' 10 July Summons on 13 July 2017 was an application for an extension of time, notwithstanding that relief not being expressly sought, because of the remedial purpose of the relevant legislation and the retrospective effect of the application to amend the 10 July Summons filed on 18 September 2017. The executors appealed and the Full Court reversed the decision.
3. Justice Stanley, with whom Kourakis CJ[15] and Lovell J[16] agreed, held:

(a) first, that the rules require an application for an extension of time to be discrete from an application for provision[17];

(b) second, an application for an extension of time must be expressly made; and

(c) third, that no implication arises that an extension of time is sought where the originating process that does not expressly seek an extension of time.[18]

1. Chief Justice Kourakis agreed with Stanley J and further held:

(a) On the proper construction of the relevant legislation (s 8(5) of the Inheritance Act), an application for an extension of time must be in writing. The Chief Justice observed that the Supreme Court Civil Rules 2006 (SA) allow for some applications to be made orally, but 'such is the nature of the application and its consequences on any subsequent distributions made out of the estate, that Parliament could not have intended applications for an extension of time, pursuant to s 8(5), to be made orally.'[19]

(b) An application for relief must 'specify the relief sought.' The Chief Justice further held, 'proceedings may be amended to seek relief in addition to, or in substitution of, the relief sought when the application is first made. However, an application is not one made for an extension of time unless and until it seeks an extension of time.'[20]

(c) The orders sought must be apparent to the Court from the text of the orders sought alone, and not from circumstances in which it is made.[21]

1. The defendant submitted that Green v Ellul is on all fours with this case, and the applicable legislation is substantially similar, and I am bound to follow it_._ The plaintiff did not submit that there was any relevant difference between the legislation in Green v Ellul and this one.

Does the OM include, by implication, an application for an extension of time?

1. The parties disagree as to the date on which the plaintiff applied for an extension of time. The plaintiff says it was on 7 February 2025, because the OM, even though it did not explicitly seek an extension of time, could only have been made with an extension of time, therefore the leave sought was implicit in its terms. The defendant submits it was made on 17 July 2025 when the plaintiff filed his summons and submissions.
2. The plaintiff relies on the decision in Bennett v Pettitt in support of the proposition that 'the filing of an originating motion connoted an application for an extension of time.'[22] In that decision, McMillan J did not find that the relief sought in the originating motion implicitly included an application for an extension of time. Rather, McMillan J noted that:

The time within which the plaintiff could make a claim for further provision expired on 27 March 2011. The plaintiff made her application for an extension of time on 27 February 2012.

...

By originating motion dated 27 February 2012, the plaintiff sought further provision from the estate of the deceased. A summons seeking an extension of time within which to issue proceedings was not filed by the plaintiff, however, the application before me was heard on the basis that such an application had been made.[23]

1. It is not apparent from the above that McMillan J made any decision about whether an application for provision made out-of-time 'connotes' an application for an extension of time. The matter proceeded on an apparently agreed basis that an application for an extension of time would be entertained by the Court despite it not being sought in the originating process or by summons. That approach is consistent with r 59.01 of the Rules, which provides some flexibility in the power of the Court to grant relief on the application of a party even when it is not sought in the originating process, particularly where such further relief is consistent with relief explicitly sought.
2. Accordingly, the Court has power to grant relief not explicitly sought, but that does not mean an originating process should be taken to include, or connote, such relief, if the necessary words are not included. If a party seeks to obtain other relief not expressed, then they must apply for it. The question whether that relief is available will depend upon considerations such as whether the relief is consistent with,[24] or an obvious aspect of,[25] the relief sought and also upon questions of any prejudice that may be occasioned by granting such relief.[26]
3. I do not accept that the OM filed on 7 February 2025 included an application for an extension of time as the words are just not there. An analogy may be drawn with the relief that may be ordered in default of appearance. Such relief is limited to the relief contained in the OM. A party is limited to the relief they claim in their originating process, or as applied for otherwise. But there needs to be an application for such relief. That conclusion is consistent with the requirements of the Rules and also with the rationale in Green v Ellul which I consider I am bound to follow_._[27]

Should the plaintiff have leave to amend the OM?

1. The next question is whether an order should be made granting the plaintiff leave to amend his OM to include a paragraph seeking an extension of time. What relief is granted at this stage has significant consequences because of the operation of s 99 of the AP Act and the usual rule that an amendment to an originating process will take effect from the date of the original filing.[28]
2. The Court's power to permit an amendment is contained in r 36.01 of the Rules which confers on the Court a discretion to allow an amendment. The discretion must be exercised judicially, having regard to the overarching purpose of the CPA to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[29] Other factors to be taken into account include: delay, any unfair prejudice caused by the amendment, case management concerns, any explanation for the timing of the application, and the prospects of success in the event leave was granted.[30] Rule 36.01(6) is 'remedial and should be given a beneficial interpretation - the widest interpretation which its language will permit'.[31]
3. The plaintiff submits that:

(a) The amendment is required because of the inadvertent error by the plaintiff's solicitor in excluding the application for an extension of time, which was clearly intended.

(b) The application was issued promptly after the plaintiff became aware in May 2025 that the defendant wished to argue that the proceeding had no real prospects of success because of the absence of leave and the effect of s 99 of the AP Act.

(c) The amendment would permit the merits of the application for an extension, which the plaintiff says are good, to be heard rather than summarily dismissed.

(d) If the amendment is permitted, then the application to extend time has real prospects because:

(i) the delay was only short (25 days);

(ii) the defendant was on notice throughout December 2024 and January 2025 that the plaintiff intended to issue an application for provision;

(iii) there is an explanation for delay; and

(iv) the defendant has not suffered any real prejudice. The distributions made to the defendant after 7 February 2025 were made with the defendant's knowledge that the plaintiff's application for provision had been issued.

(e) In relation to his family provision claim, the plaintiff submits he has real prospects because:

(i) he is in a weak financial position;

(ii) he is in poor health;

(iii) he was excluded from the Will because he was not expected to survive the deceased; and

(iv) the defendant has relative financial strength.

1. The defendant's submissions are essentially as follows:

(a) The amendment application should not succeed because the real controversy concerns 'whether or not the plaintiff filed his application in time and plainly he did not.' Further, there is no 'error' to correct.

(b) Contrary to the plaintiff's submission, by email dated 27 February 2025, the defendant notified the plaintiff that he had failed to apply for an extension and flagged a summary judgment application. Accordingly, there was significant and unexplained delay.

(c) The submission that he intended to apply for an extension is contrary to the submission that such an application is 'implicit' in the OM.

(d) The size of the estate (currently $871.06) is so small that there are no real prospects of successfully recovering anything, even if ordered. Even if a back-dated amendment is permitted so that distributions after 7 February remain available, the estate would still be less than $100,000.

(e) The plaintiff cannot rely on his solicitor's negligence as the sole reason for his failure to bring the application within time and make an application for extension of time.

1. In the defendant's further submissions in relation to Green v Ellul, the defendant submits that no application for an extension of time has been made, whether in the OM or the summons filed on 29 July 2025. The Court therefore has no jurisdiction to entertain a claim for provision. Any application for an extension that may now be made will be made after distribution of practically all the estate, and so should be refused. That submission does not squarely address the point that the application is one to amend the OM retrospectively so that distributions after the date of the OM are not protected.
2. There is an aspect of Green v Ellul that I consider determinative. Justice Stanley held that where an application for provision is not made in time, and prior to any application for an extension of time to bring such a claim (which must be specifically/expressly sought), an executor is obliged to distribute the estate, and a beneficiary could hold the executor to account if they failed to do so and valid claims were subsequently made. Justice Stanley held as follows:

The Act permits an application for an extension of time which can be made either before or after the expiry of the limitation period. If the latter, it must be made before a final distribution of the estate and any distribution made before the application for an extension of time cannot be disturbed. The finality of distributions made before any application for an extension of time makes it imperative that executors be in no doubt as to whether an application for an extension of time has, or has not, been made. The existence or otherwise of an application for an extension of time pursuant to s 8 is of critical importance to executors in the discharge of the duties of their office. If the application for the benefit of the Act is out of time, but no application for an extension of time has been made, the executor has a duty to distribute. This is especially so where a distribution to a beneficiary before an application for an extension of time ensures that the distribution will not be disturbed. The beneficiary is entitled to hold the executor to account if the executor fails to discharge that duty and the undistributed estate becomes subject to a claim under the Act by reason of the making of an application for an extension of time before distribution. The fact of the making of an application for an extension of time must be beyond dispute. This is a cogent consideration against the implication of an application for an extension of time by the service of a summons invoking the Court's jurisdiction pursuant to the Act in the absence of any express application for an extension of time.[32]

1. Justice Stanley held that the obligations on executors, and entitlement of beneficiaries, under the legislative regime are cogent reasons against the implication of an application for extension of time. That is not only a strong argument undermining the merits of any application for an extension of time that could ultimately be made by the plaintiff in this case, but it is also a compelling factor in refusing leave to amend as sought. If the rationale in Green v Ellul is accepted, as I do, then the executors were obliged to distribute the estate after the expiry of the six-month period, and beneficiaries could take action against them personally if they did not. In such circumstances, it would be unjust to grant leave to amend, particularly where there is a risk such amendment would operate retrospectively. To permit such a course would potentially bring into question the valid exercise of obligations by executors and the valid granting of rights to beneficiaries. Further, and even on the plaintiff's best case, the high water mark of the value of the estate (on the basis that the relevant distributions are not disturbed) is approximately $100,000. The legal costs of the plaintiff's claim in that context would likely diminish that estate significantly. For those reasons, I refuse the application for leave to amend.

Should the plaintiff's claim be summarily dismissed?

1. The principles in relation to summary judgment were not in dispute. In Lysaght Building Solutions v Blanalko, Warren CJ and Nettle JA explained the test for summary judgment as depending on:

... whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success.[33]

1. Having reached the above conclusions in relation to the first two issues, it is clear that the plaintiff's claim has no prospects of success and should be dismissed.
2. Absent an application for an extension of time, the estate has been validly distributed almost entirely. That being the case, there is no prospect of a provision order being made.[34]
3. The parties are to provide orders consistent with these reasons within 14 days if they can be agreed, otherwise I will hear from the parties further.

[1] Supreme Court (General Civil Procedure) Rules 2015 were the applicable Rules at the time of hearing.

[2] Affidavit of Steven Mark Hopper affirmed on 24 July 2025, [21].

[3] Affidavit affirmed by Steven Mark Hopper on 24 July 2025, [22].

[4] Administration and Probate Act 1958 (Vic) ss 90A and 99 (emphasis added) ('AP Act').

[5] Supreme Court (Administration and Probate) Rules 2023 (Vic) rr 1.05, 1.02 ('Chapter III Rules'); Supreme Court Act 1986 (Vic) s 25.

[6] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.05 (emphasis added) ('Rules').

[11] Green v Ellul [2018] SASCFC 100.

[13] Inheritance (Family Provision) Act 1972 (SA) s 8 (emphasis added) ('Inheritance Act'). The Inheritance Act is now repealed and replaced by the Succession Act 2023 (SA).

[14] Green v Ellul (n 11) [37]-[45]. The Supreme Court Civil Rules 2006 (SA) is now repealed and replaced by Uniform Civil Rules 2020 (SA).

[17] That is not to say both may not be sought at once, see Green v Ellul (n 11) [49].

[22] Bennett v Pettit [2012] VSC 234.

[24] See discussion in David J Bailey, Daniel D Nguyen and Nicolas C Dour, Civil Procedure Victoria (LexisNexis, May 2025) [l 59.01.15], citing Cargil v Bower [1878] UKLawRpCh 149; (1878) 10 Ch D 502, 508.

[25] Farrow Finance Co Ltd (in liq) v Farrow Properties Pty Ltd (in liq) [1999] 1 VR 584, 633-6.

[27] Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89, 151-2 [135].

[28] Willmott Forests Ltd v Armstrong Dubois [2016] VSC 61, [31] (citations omitted) ('Willmott v Armstrong').

[29] Civil Procedure Act 2010 (Vic) s 7(1) ('CPA').

[30] Carroll v Goff [2021] VSCA 267, [75]-[76].

[31] Willmott v Armstrong (n 28) [34].

[32] Green v Ellul (n 11) [55] (emphasis added).

[33] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, 40 [35].

[34] Haddow v Haddow [2021] VSC 553, [38].