Plaintiff v Defendants

1 This is an application by the defendants for summary judgment in relation to a claim for family provision made by the plaintiff under pt IV of the Administration and Probate Act 1958 (Vic) ('the Act').

2 The plaintiff issued an originating motion within the relevant time limit to commence such a claim, but did not serve the originating motion on the defendants until after that time limit had expired. Instead, the plaintiff's solicitors exchanged written communication with the defendants' solicitors. The effect of this communication as 'notice' of the claim, within the meaning of certain sections of the Act, is central to the determination of this application.

3 The net estate, as valued by the probate inventory, is extremely modest at $210,966.33 (due to some relatively significant liabilities, totalling $266,823.57). It included a residential property located in regional Victoria, valued at $193,000.00 ('the Property'). The defendants distributed the Property to the first defendant, as sole beneficiary of the estate, after expiration of the time limit to commence a claim for family provision under the Act and prior to service of the originating motion.

The remaining balance of the estate is presently a mere $65.81.[1] Whether the distribution of the Property is 'protected' from this claim depends on what 'notice' of the claim was given to the defendants within the meaning of pt IV of the Act prior to the distribution. If the distribution of the Property is 'protected' then this family provision claim is unviable and must be dismissed.

4 For the reasons that follow, I give summary judgment to the defendants under s 63(2)(b) of the Civil Procedure Act 2010 (Vic) ('the CPA').

5 For the purposes of this application for summary dismissal, there is no dispute regarding the family background contained in the plaintiff's position paper filed on 29 January 2021 and amended on 2 February 2021.

6 The plaintiff and the first defendant are the only children of their late mother, Evelyn Haddow ('the deceased'). The deceased died on 25 May 2019, aged 90 years. Her husband, who was the father of the plaintiff and first defendant, predeceased the deceased.

7 On 24 February 2016, the deceased made her last will which appointed the first defendant and his wife, the second defendant, as her executors and effectively left her estate to the first defendant ('the Will').

8 On 21 June 2017, the plaintiff applied to the Victorian Civil and Administrative Tribunal ('the VCAT') for orders seeking, inter alia, the revocation of a power of attorney granted by the deceased to the first defendant and the investigation of a series of transactions which resulted in a substantial reduction in the deceased's personal assets. The VCAT application was unsuccessful.

9 The plaintiff and his wife are in poor financial circumstances and operate a business which appears to be in a dire financial position. The plaintiff, aged in his mid-60s, is also in poor health.

10 On 14 January 2020, probate of the Will was granted to the defendants.

11 On 6 July 2020, the plaintiff issued his originating motion seeking provision from the estate of the deceased under pt IV of the Act, prior to the expiration of the time limit, being within six months after the date of the grant of probate of the Will under s 99 of the Act.[2]

12 On 9 July 2020, the plaintiff's solicitors wrote to the defendants' solicitors in the following terms (omitting formalities) ('Plaintiff's First Letter'):

We act on behalf of Colin Haddow, the son of the late Evelyn Winfred Haddow and understand that you act on behalf of the estate. If that is not the case, please advise and we will write to the executor directly.

We have been instructed to commence a claim on behalf of our client pursuant to Part IV of the Administration and Probate Act.

We put you on notice not to distribute any part of the estate until such time as our client's claim is dealt with.

We look forward to hearing from you.[3]

13 On 20 July 2020, the defendants' solicitors replied to the Plaintiff's First Letter by confirming that they did act for the defendants as executors of the deceased's estate and enclosing a notice pursuant to s 30 of the Act ('Section 30 Notice'), which required the plaintiff to "... take (within three months from the date of receiving this notice) all proceedings proper to enforce or establish any claims that you may have against the estate of the Deceased and to duly prosecute those claims".[4]

14 On 14 August 2020, the plaintiff's solicitors wrote to the defendants' solicitors requesting details of estate debts totalling $266,823.57 payable to the defendants which appeared in the probate inventory and any documents 'legitimising' these debts. This letter does not refer to the originating motion.

15 On 8 September 2020, the defendants' solicitors sent a courtesy reply to the 14 August 2020 letter advising they were still obtaining instructions, collating documents and preparing a reply.

16 On 15 October 2020, the defendants' solicitors sent a substantive response to the 14 August 2020 letter, informing the plaintiff of a supplementary inventory sworn on 11 March 2020, which indicated that the estate was indebted to the 'Haddow Family Trust', rather than to the defendants personally. Further, then recent accountancy had revealed errors of $37,065.96 in the total amount owed. This letter gave details of each debt and provided bank statements and a list of invoices, the result of which is that the total claimed debt for the 'Haddow Family Trust' from the estate was $127,643.61. This letter also noted that the Section 30 Notice expired on 20 October 2020 and advised that '...we intend to progress the administration of the estate shortly thereafter'.

17 On 22 October 2020, at 12.52 pm, the defendants' solicitors received an email from the real property exchange service 'PEXA' which confirmed transfer documents had been lodged and title to the Property had been registered with the Victorian Land Registry (presumably to the first defendant personally although these details are not included in this email).

18 Also on 22 October 2020, at 2.15 pm, the plaintiff's solicitors sent an email to the defendants' solicitors in the following terms (omitting formalities):

Thank you for your letter dated 15 October 2020.

We can confirm that on 6 July 2020 we filed an Originating Motion on behalf of our client.

Once we have obtained our client's instructions regarding the contents of your letter, we will revert back to you.[5]

19 Later on 22 October 2020, the defendants' solicitors wrote to the plaintiff's solicitors informing the plaintiff's solicitors that the Property had been transferred to the first defendant as sole beneficiary of the estate and providing a copy of the PEXA email. This letter also informed the plaintiff's solicitors that only approximately $30,000 then remained in the estate after the distribution of the Property. This letter also raised issues in contention in this application for summary dismissal.

20 On 26 October 2020, the plaintiff's solicitors wrote to the defendants' solicitors responding to issues relating to this application and enclosing by way of service the originating motion.

21 On 12 November 2020, the defendants filed and served a summons for directions in this proceeding which was listed for 8 December 2020, but it was adjourned to 2 February 2021 of the Court's own motion as the plaintiff's material had not been filed.

22 On 2 February 2021, the Court was informed by the defendants that $15,412.34 then remained in the estate given the distribution of the Property. The issues dealt with in this application were foreshadowed and various case management directions were made.

23 On 23 February 2021, the defendant issued the summons for summary dismissal which is determined by these reasons.

Section 99A of the Act

24 The central question in this application of whether the defendants' distribution of the Property is protected from the plaintiff's claim is answered by consideration of s 99A of the Act. In this application, sub-sections (3), (4) and (5) are most relevant:

(3) No action lies against a personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative after the expiry of 6 months after the grant of probate of the will or of letters of administration (as the case may be) and either -

(a) the personal representative has not had notice of an application for a family provision order in respect of the estate; or

(b) if the personal representative has had a notice of an intention to make an application for a family provision order in respect of the estate in accordance with subsection (4), the personal representative has not received written notice that an application for a family provision order has been made to the Court within 3 months of the receipt of that notice of an intention to make an application for a family provision order.

(4) For the purposes of this section, notice to a personal representative of an intention to make any application for a family provision order referred to in subsection (3)(b) -

(a) must be in writing signed by the eligible person or the eligible person's legal practitioner; and

(b) lapses within 3 months from the receipt of the notice by the personal representative unless an application for a family provision order has been made to the Court; and

(c) is incapable of being renewed.

(a) extends the period within which a person can make an application for a family provision order without a Court order; or

(b) prevents the subsequent making of an application for a family provision order within any other period allowed by this Act.

25 In summary, the defendants submit that the Plaintiff's First Letter was not notice of an application for family provision order within the meaning of s 99A(3)(a) of the Act. Rather, the Plaintiff's First Letter was notice of an intention to make an application for a family provision order, within the meaning of s 99A(3)(b) of the Act (emphasis added). Therefore, they submit that the notice of intention to make a claim expired on 10 October 2020 and 'may be ignored' in the absence of the plaintiff providing another written notice 'that the application has been made to the Court'.[6] The plaintiff did not give written notice that the family provision application had commenced until 22 October 2020, after the distribution of the Property had occurred. On this basis, they submit that no action lies against them with respect to the distribution of the Property and the plaintiff's claim can only be advanced against the remaining estate.

26 Section 93 of the Act requires 'notice' of an application for a family provision order be served on a personal representative. The defendants rely on s 93 to argue that nothing less than service of the originating motion is required to remove the protection for a personal representative who distributes an estate after six months from a grant of probate or letters of administration provided by s 99A(3)(a).

27 In addition, the defendants rely on the Section 30 Notice provided to the plaintiff by letter dated 20 July 2020, to argue that it 'compelled' the plaintiff to bring any claim he may have against the estate, including any family provision claim, and to notify the Estate in writing that he has done so by 21 October 2020.

28 The defendants seek summary dismissal due to the remaining size of the estate. The plaintiff's costs to the end of mediation were estimated by his solicitor to be $26,000.00.[7] The defendants will also incur further costs if the claim continues, such that there will be no estate left for further provision for the plaintiff, or even for his legal costs. On this basis, they submit that the claim is counterproductive.[8]

29 The plaintiff submits that if a personal representative distributes part or all of an estate where a claim has been properly made within time, the claim survives and may be prosecuted against the personal representative.[9] That is, distributing the estate before the six month period to bring a family provision claim has expired does not defeat the power of the Court to order provision for the plaintiff.[10] It is only if any of the 'pre-conditions' in s 99A of the Act are met that the personal representative is protected from claims in respect to distributed estate. There is limited judicial consideration of s 99A[11], although Moore J dealt with a notice of an intention to make a claim in Re Stewart.[12]

30 The plaintiff essentially relies on two alternative grounds to argue that the defendants are not protected by s 99A(3) of the Act.

31 First, the plaintiff submits that the Plaintiff's First Letter is a notice of an application for a family provision order in respect of the estate within the meaning of s 99A(3)(a), rather than a notice of intention to make an application within the meaning of s 99A(3)(b). The plaintiff relies for this submission on the specific wording of the Plaintiff's First Letter, in particular the use of the word 'claim' and the notice to the defendants not to distribute 'until such time as the claim is dealt with'. The Plaintiff's First Letter also made reference to the instructions to commence a claim. Read together and in context, the plaintiff submits, the Plaintiff's First Letter ought to be understood as referring to a claim that had commenced in accordance with the instructions that had been given. Therefore, the protection provided to the defendants by s 99A(3)(b) does not arise, as no notice of intention to claim was ever provided. Instead, the situation at hand involves a claim made within time, where notice of that claim was given to the personal representatives within the meaning of s 99A(3)(a), such that they are not protected by s 99A of the Act in respect to the distribution of the Property.

32 Alternatively, the plaintiffs submits that if the Plaintiff's First Letter is found to be notice of an intention to make a claim within the meaning of s 99A(3)(b), then by s 99A(4)(b) it will lapse within three months of receipt by the personal representative, 'unless an application for a family provision order has been made to the Court'. Here, of course, an application for family provision order has been made, so the plaintiff submits, the notice of intention to claim did not lapse after three months. The protection given to the defendants by s 99A(3)(b), where three months has elapsed from receipt of the notice of intention without notice of an actual claim having been made does not apply, as the notice of intention continues in force beyond three months by s 99A(4)(b). In essence, the plaintiff argued that s 99A(4)(b) and s 99A(3)(b) were 'conflicting provisions', in the sense used in Project Blue Sky[13], and that therefore, the protection given by s 99A(3)(b) gives way to the characteristics of a notice of intention as set out in s 99A(4).

33 The plaintiff submits that the Section 30 Notice does not assist the defendants.

34 Finally, the plaintiff relies on the nature of a summary judgment application to highlight that a final decision is not required on the alternative interpretations of the Plaintiff's First Letter. It is enough that the plaintiff has a realistic prospect of success in his arguments, as the power to summarily dismiss must be exercised with very real caution.[14]

35 Summary judgment is available under s 63 of the CPA where a claim has no real prospect of success. The power to summarily dismiss should be exercised with exceptional caution[15], but consistently with the Court's own obligations to give effect to the overarching purposes of the CPA.[16] A number of cases speak of the need for additional caution before summarily dismissing a family provision claim.[17] Family provision cases usually involve a significant degree of judicial discretion, which generally weighs against summary judgment. Nonetheless, summary judgment must be given in a family provision claim, where it has no real prospect of a favourable exercise of discretion, or it is 'bound to fail'. Hodgson J in Warren v McKnight said:

I do not think the Family Provisions Act 1982 should be read as precluding the application of summary judgment provisions. ... However, in a matter in which so much is at large, and so much subject to discretion, I would accept that it would be in rare cases that the application of the summary judgment provision would be appropriate.[18]

36 Summary judgment will be ordered more readily where the issue involves a pure question of law, rather than where there is a disputed question of fact.[19] Here, the relevant facts are not disputed.

37 The sole question to be determined here is whether the plaintiff has any claim against the defendants in circumstances where the defendants distributed the Property after receiving the Plaintiff's First Letter. If so, there is a real prospect of success. If not, this proceeding is unviable as there are insufficient assets remaining in the estate to cover the estimated costs of both parties, let alone for any provision to be ordered from the estate to the plaintiff.

38 That is not to say that there is 'automatic' summary dismissal wherever a family provision claim is made against a small estate. The Court must be satisfied that is impossible for an effective order for provision to be made before dismissing a claim against a small estate.[20] Here, the quantum of the remaining estate[21] and the plaintiff's estimated costs to the end of mediation[22] are clear. In this case, I am satisfied that the plaintiff's claim in this proceeding has no real prospect of success, if the defendants are protected by s 99A in respect to the distribution of the Property.

39 The determination of this issue, although arising in the context of a family provision case, does not involve the exercise of discretion, weighing of competing claims, detailed consideration of differing versions of family relationships or any of the usual complexity that generally requires a full hearing of a family provision claim at trial.

40 Nonetheless, the plaintiff is correct that caution is required before granting summary dismissal, as in any civil litigation. That is, the plaintiff does not need to satisfy me that he is correct in his arguments about s 99A, just that he has a real prospect of success in these arguments for his claim to be permitted to continue. This usual caution is heightened in this case as it raises difficult issues of interpretation as noted by Bell J in Younan (No. 2):

Sections 99 and 99A have analogues in the other Australian jurisdictions and in New Zealand. But the provisions vary in terms and cannot usefully be compared. The provisions have received very little judicial attention and nothing determinative. With respect to our provisions, there is no authority on point. Nothing in the legislative history or parliamentary materials assists with their interpretation.[23]

Is the Plaintiff's First Letter 'notice of an application for a family provision order'?

41 As can be seen above, s 99A(3)(a) of the Act uses a double negative to protect a personal representative's distribution of an estate where:

(i) six months after the grant of representation has expired; and

(ii) the personal representative has not had notice of an application for a family provision order in respect of the estate.

42 That is, if notice of an application for a family provision order is given to a personal representative within six months of the grant, action may lie against the personal representative for any distributions made from the estate (subject to other protections in s 99A not relevant here). If six months from the grant has expired without notice of a family provision claim, a subsequent notice of a claim would remove this protection with respect to further distributions, although not extend time to make a claim.

43 The plaintiff's first position is that the Plaintiff's First Letter is 'notice of an application for a family provision order' for the purposes of s 99A(3)(a) of the Act. It was received within six months of the grant and in advance of the distribution of the Property, such that the plaintiff says the protection of s 99A(3) is lost to the defendants by this notice of his claim.

44 Yet, the Plaintiff's First Letter does not contain any notice that a claim had been commenced in the Court. Instead, it gives notice that the plaintiff's solicitor holds instructions to commence a claim, which is inconsistent with a claim having already been commenced.

45 The fact that the Plaintiff's First Letter also contains 'notice' not to distribute the estate until the claim is dealt with does not convert it into notice that a claim has actually been commenced. For example in Holdway, a notice of an intention to claim also included a request the estate not be distributed without notice to the plaintiff.[24] The inclusion in the Plaintiff's First Letter of a 'notice' not to distribute until the plaintiff's claim was dealt with does not change the clear words "[w]e have been instructed to commence a claim...". Nor does this section of the Plaintiff's First Letter rectify the absence of any notice of the issuing of the claim in the Court.

46 I find that the Plaintiff's First Letter does not give 'notice' of an application for family provision order in respect to the estate within the meaning of s 99A(3)(a) of the Act.

47 The defendants submitted a 'notice of an application for family provision order' in s 99A(3)(a) must be 'served' on a personal representative pursuant to s 93. Section 93 of the Act states as follows:

93 Service of notice of application

Notice of an application under section 91 must be served on the personal representative of the deceased and on such other persons as the Court orders.

48 As I have found the Plaintiff's First Letter is not a notice of the making of an application, then I need not determine whether or not it needed to be 'served' within the meaning of s 93 in order to strip the defendants of the protection of s 99A(3). I was not referred to any authority as to the purpose of s 93. It is possible that this section is included in the Act to empower the Court to order notice of an application for family provision order be served on non-parties. However, service of the originating motion would provide proof of notice of a claim, thereby protecting rights in respect to estate distributions. It seems a prudent step to take to avoid complications such as have arisen here and it is required at some point in any event.[25] On the other hand, if parties are engaging in good faith settlement negotiations prior to service of an originating motion, a personal representative who consents to a plaintiff delaying service may well be bound by that consent.[26] On this point I note that, whatever its purpose, s 93 is a 'machinery' or procedural provision, rather than a jurisdictional provision giving rise to the right to relief created by pt IV of the Act.[27] It is possible that notice under s 99A(3) may be given by a means other than formal service in accordance with the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

Is the Plaintiff's First Letter 'notice of an intention to make an application for a family provision order'?

49 Section 99A(3)(b) again uses a double negative to protect a personal representative's distribution of an estate, and may be paraphrased as providing protection when:

(i) six months after the grant of representation has expired; and

(ii) the personal representative has had a notice of an intention to make an application for a family provision order in respect of the estate in accordance with s 99A(4) ('notice of intention'); and

(iii) the personal representative has not received written notice that an application for a family provision order has been made to the Court within 3 months of the receipt of the notice of an intention.

50 The characteristics of a notice of an intention to make an application for a family provision order are set out in s 99A(4). It must be in writing, signed by the eligible person or their legal practitioner, it lapses within three months, unless an application has been made to the Court, and is incapable of renewal.

51 The plaintiff's alternative position is that the Plaintiff's First Letter is a notice of intention for the purposes of s 99A(3)(b) of the Act. This is also the defendants' position. However, at the time the Plaintiff's First Letter was given, the originating motion for an application for family provision orders had already been filed with the Court. It is difficult to conceive that a party may give notice of an intention to do something which has already been done, particularly where giving notice of such an intention can, in certain circumstances, hold distributions away from the named beneficiaries for a period of time beyond the time limit for making such an application. However, as nothing turns on it for the purposes of this decision, I accept the parties' common position that the Plaintiff's First Letter is a notice of intention within the meaning of s 99A(4) of the Act.

52 On this basis, the plaintiff needed to give notice that an application had been made to the Court within three months in order to remove the protection given to the distribution of the Property by s 99A(3) of the Act.[28] The Plaintiff's First Letter is dated 9 July 2020. The date of receipt is not in evidence, but the material filed by both parties suggests it was received by the defendants' solicitors that day. If so, three months expired on 9 October 2020. The plaintiff gave notice of the making of the claim on 22 October 2020 and provided a copy of the originating motion 'as service' on 26 October 2020. In these circumstances, the Property was distributed:

(i) after six months from the grant had expired;

(ii) after a notice of intention had been received (in the form of the Plaintiff's First Letter); and

(iii) without a second written notice that the claim had been issued within three months of the notice of intention.

Therefore, by s 99A(3)(b), no action lies against the defendants for having distributed the Property on 22 October 2020, more than three months (being 3 months and 13 days) after the Plaintiff's First Letter.

53 The plaintiff submits that since he had already issued a claim in the Court, albeit in advance of his notice of intention, his notice of intention does not lapse and instead it continues in effect beyond three months, by virtue of s 99(4)(b) of the Act. That may be so. The notice of intention may well be "unelapsed", to use an expression from Younan (No 2), that is not determinative in this proceeding.[29] What matters here is not that the plaintiff had already issued a claim, or the duration of his notice of intention, but that he failed to give notice of the claim to the defendants within three months of giving the notice of intention. It is the lack of notice of the issued claim within the relevant time periods that is relevant to the defendants' protection under s 99A(3).

54 Therefore, in my view, s 99A(3)(b) and (4) are harmonious and s 99A(3)(b) need not be read down to avoid conflict with s 99A(4)(b). They are separate and distinct clauses providing for different matters. Section 99A(4) sets out the characteristics of a notice of intention for the purposes of s 99A(3)(b). Section 99A(3)(b) sets out when a personal representative may distribute an estate and receive protection from family provision claims in circumstances where a notice of intention has been received.

55 In reaching this conclusion I have considered the requirement in s 35(a) of the Interpretation of Legislation Act 1984 (Vic), that, in interpreting the Act, a construction that promotes its purpose or underlying object must be preferred. Family provision legislation is remedial in character.[30] Its 'evident purpose' is to place the assets of the deceased at the 'disposal of the court' to provide for 'the nominated dependants of the deceased'.[31] However, while the overall purpose of the Act may be remedial, the particular purpose of each provision must be separately identified.[32] Like Victoria, other Australian jurisdictions permit family provision claims but impose short time limits for making such claims that cannot be extended against distributed estate. In addition, generally such legislation provides protection for a personal representative making interim distributions within the time limit for family provision claims to dependent partners and children.[33] Time limits allow for the prompt and certain administration of deceased estates once the relevant time limit has elapsed without a claim. Balanced against that is the recognition that where a claim is made and proper notice of the claim provided, distribution of an estate should await the finalisation of the claim, except for maintenance of dependents and appropriate interim distributions.[34]

56 Section 99A(3)(b) provides a process where an eligible person may preserve the viability of their claim for up to three months, within and, potentially, beyond the limit of six months after the date of the grant of representation provided by s 99, although it does not by itself extend time for an application.[35] This strengthens the position of an eligible person who has limited time to make a claim, yet gives certainty to a personal representative about whether to make or withhold distributions, as well as certainty to the beneficiaries of the estate. Section 99A(4) merely defines the form and duration of a notice of intention. The effect and operation of the notice of intention is set out in s 99A(3)(b) itself. This accords with the overall purpose of s 99A, which is to balance the interests of various parties regarding access to and preservation of the estate during the period in which a family provision claim may be made, and protects the personal representative in respect to all distributions thereafter.

57 The plaintiff's submissions included authorities dealing with distributions made within the primary statutory time limit and with applications to extend time to claim against undistributed estate. Neither of those situations arise in this case. This is a situation where the claim for family provision was made within time, but the major asset of the estate was distributed after the end of the statutory six month time limit and an additional period relating to s 99A(3)(b). The question to be determined here is whether or not the executors are protected by s 99A(3) in respect to this distribution, not the duration of the notice of intention under s 99A(4).

58 In my view, the plaintiff's contention that the defendants are not protected by s 99A(3)(b) for the distribution of the Property on 22 October 2020, has no real prospects of success. Section 99A(3) is clear. No action lies against a personal representative who distributes any part of an estate where the conditions for protection in that section of the Act are satisfied.

59 Section 30 of the Act permits a personal representative to serve notice on a person making or potentially making a claim against an estate giving three months to take proceedings or the personal representative may seek orders that, among other things, the claim is barred or the estate may be distributed without regard to the claim. It is not common to see a s 30 notice issued to a potential family provision claimant. A s 30 notice is more often given to creditors or purported 'next of kin', to assist finalising estates where there is some uncertainty about liabilities with long limitation periods or the proper distributions of an estate.[36] In any event, in this case a family provision claim was issued, albeit in advance of the Section 30 Notice. I do not consider the Section 30 Notice is relevant to this summary dismissal application.

60 In this case, there is no real prospect that at trial it will be found that action lies against the defendants for having distributed the Property, on either of the plaintiff's arguments regarding the effect of the Plaintiff's First Letter under s 99A(3) of the Act.

61 Further, I do not consider that the Court should exercise its discretion, pursuant to s 64 of the CPA, to allow the plaintiff's claim to proceed to a full trial of all issues 'in the interests of justice'. Given the extremely small size of the remaining estate, there is no utility in this case proceeding any further.

62 Therefore, I will order that the proceeding be summarily dismissed. The parties are to prepare draft orders giving effect to these reasons and send them to Chambers.

If the parties are unable to agree, including on the question of costs, the proceeding can be listed for further hearing.

[1] Affidavit of Joanne Hazeldene sworn 13 May 2021 [6].

[2] De Angelis [2003] VSC 83; (2003) 7 VR 331 [2] (Mandie J); Younan v Younan [2015] VSC 258 [20]-[22] (Lansdowne AsJ).

[3] Affidavit of Joanne Maree Hazeldene sworn 23 February 2021 [12], Exhibit JMH-7.

[6] Citing Younan v Younan (No 2) [2015] VSC 549 [11] (Bell J) ('Younan (No 2)').

[7] Affidavit of Andrew Meiliunas sworn on 29 January 2021 [3].

[8] Citing Re Fitzgerald; Voss-Lassetter v Piancun [2020] VSC 784 [62] (Englefield JR) ('Re Fitzgerald').

[9] Citing Easterbrook v Young [1977] HCA 16; (1977) 13 ALR 351, 359 (Barwick CJ, Mason and Murphy JJ).

[10] Citing Walters v Person (No 3) [2019] VSC 733 [106] (Derham AsJ).

[11] Citing Younan (No 2) (n 6), [13] (Bell J).

[12] Re Stewart [2020] VSC 737 (Moore J).

[13] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69]-[71] (McHugh, Gummow, Kirby and Hayne JJ).

[14] Citing Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, 40 [35] (Warren CJ and Nettle JA) ('Lysaght').

[15] Ibid. See also Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99 (Mason, Murphy, Wilson, Deane and Dawson JJ).

[16] Lysaght (n 14), 42 [41] (Neave JA).

[17] See Warren v McKnight (1996) 40 NSWLR 390, 396 (Hodgson J) ('Warren'); El-Zaouk v Draybi [2010] NSWSC 1001, [16]-[25], [28], [32] (Hallen AsJ); Wolff v Deavin [2012] NSWSC 1315, [35-8] (Macready AsJ); Jackson v Newns [2011] VSC 32 [11] (Mukhtar AsJ) ('Jackson'); IMO the Will and Estate of William James Milburn (deceased) [2014] VSC 229 [34] (Zammit AsJ).

[18] Warren (n 17), 396 (Hodgson J).

[19] Re Demediuk [2016] VSC 587 [18] (McMillan J), citing Mutton v Baker [2014] VSCA 43 [19] (Santamaria JA).

[20] Re Fitzgerald (n 8) [53]-[57] (JR Englefield).

[21] Affidavit of Joanne Hazeldene sworn on 13 May 2021 [6].

[22] Affidavit of Andrew Meiliunas sworn on 29 January 2021, [3] providing an estimate of $26,000.

[23] Younan (No 2) (n 6) [13] (Bell J).

[24] Holdway v Arcuri Lawyers (A Firm) [2008] QCA 218; [2009] 2 Qd R 18 [14] (Keane JA). See also IMO Ivor Withall Trescowthick [1999] VSC 409 [19]-[20] (Warren J).

[25] See r 6.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

[26] See, eg, Harrison v Harrison [2011] VSC 459, [362]-[370] (Kaye J). Upheld on appeal: Harrison v Harrison [2013] VSCA 170 (Garde AJA, Harper JA agreeing at [1], Tate JA agreeing at [2]).

[27] O'Brien v Hall [2015] VSC 52 [47] (Derham AsJ).

[28] Younan (No 2) (n 6) [11] (Bell J); Administration and Probate Act 1958 (Vic) s 99A(3)(b) ('the Act').

[29] Younan (No 2) (n 6) [15] (Bell J).

[30] Holmes v Permanent Trustee Co of New South Wales [1932] HCA 1; (1932) 47 CLR 113, 119 (Rich J, Evatt and McTiernan JJ agreeing at 120).

[31] Easterbrook v Young (1977) 136 CLR 308, 315 (Barwick CJ, Mason and Murphy JJ). See also Barns v Barns [2003] HCA 9, [42]-[44] (Gummow and Hayne JJ).

[32] ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1 [29] (French CJ, Crennan, Kiefel, and Keane JJ).

[34] LexisNexis, Wills Probate and Administration Vic + Cases, (online at 27 August 2021) [42,105]-[42,120]

[35] The Act (n 28) s 99A(5); Younan (No 2) (n 6), in that case a notice of intention was ineffective where an estate was fully distributed prior to the six month time limit and the claim was made after the time limit.

[36] See, eg, Re Slater [2020] VSC 525 [48]-[53] (McMillan J); Re DeBruin [2019] VSC 813 [12]-[25]