(2)There is no grant of administration in respect of the deceased's estate. In Cabban v Cabban

Supreme Court of NSW|2012-04-12|Before: Macready J

Judgment 1HIS HONOUR: This is an application under the Succession Act 2006 in respect of the estate of the late William Navin, also known as Terrence "Bill" Fisher, who died about 19 December 2009. The deceased was survived by his former de facto partner, who is one of the plaintiffs, and her son, Matthew, who is also now a plaintiff in the matter. 2When the matter was before me on 9 March 2012 I ordered the proceedings continued in the absence of the representative of the deceased person's estate. As I explained in my judgment, it was necessary given the likely absence of any relatives of the deceased and the fact that the Crown Solicitors Office and the NSW Trustee and Guardian had refused to become parties to the present application.

Testamentary wills of the deceased 3The deceased made a will dated 24 October 2005 in which he appointed the Public Trustee as executor and all his estate went to the plaintiff, Matthew. This will was revoked on 19 February 2008 and no other will has been found. No grant of administration has been made. Searches show that the deceased had no children, and this is supported by the deceased's claim, verified by his de facto partner, that he was sterile. The evidence is that the deceased never married, which is borne out by his death certificate. Further searches have been undertaken and it seems that his father was Kevin James Navin and he died on 21 July 1972. In the death certificate of his father there is shown a person recorded as his wife, Dorothy Navin. Dorothy is mentioned as the mother of the deceased but there is no surname given in the deceased's death certificate because the fact that he, and anyone close to him, had never seen her, she having left Kevin James Navin when the deceased was a very small child. 4There is also shown on Kevin James Navin's death certificate a record of his sister, D J Cleland, the deceased and the deceased's sister. There have been extensive searches to try and locate either the existence of the former wife and also of the sister of the deceased. Those searches and advertisements have shown no response. I am satisfied there is nothing further that can be done to try and trace any of those persons and I am satisfied that it is impracticable to give them notice of the proceedings.

The estate of the deceased 5This consists of a unit at Liverpool worth $180,000, cash of $48,163, and personal property of $900, a total of $229,063. There are liabilities of $4,513, leaving a net estate of $224,550 that will be subject to the costs of the application, which so far are quite modest.

Family history 6The plaintiff was born in 1946. She met the deceased in 1985 and they commenced living together in a flat that the deceased had at that stage. Matthew, the plaintiff's son, then aged six years, also came to live with the deceased and his mother. 7In 1986 the plaintiff and the deceased bought a home jointly. In 2005 the deceased retired from his job as a roof fixer. From this time his drinking and violence became far worse. 8In February 2008 the deceased perpetrated an attack on the first plaintiff and an AVO was issued against him. He stayed away but when that expired, once again he became violent and the first plaintiff was forced to leave. 9There was then an application under s66G of the Conveyancing Act 1919 and the home was sold. Each of the deceased and the first plaintiff took their share and with that the deceased bought a very small unit at Liverpool. 10The plaintiff last spoke to him in November 2009. As I have mentioned, he died in his flat on or about 19 December 2009. The date is uncertain because he was discovered dead in his flat and the death had occurred some time before. 11The proceedings by the first plaintiff had been commenced in time. However, the claim by Matthew is out of time because he only became a party when he was joined as a plaintiff on 9 March 2012. 12Section 58 of the Succession Act 2006 (supra) is as follows: "58 When an application may be made (cf FPA 16 (1) (b) and 17) (1) An application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted. Note. Administration may be granted for the purposes of an application for a family provision order (see section 91). (2) An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown. (3) An application is taken to be made on the day it is filed in the Court's registry." 13This is similar to the terms of s16 of the Family Provision Act 1982 except that the words "for the application not having been made within that period" have been deleted. The purpose of the deletion was probably to address the difficulties pointed out by Hodgson J in Lewis v Lewis [2001] NSWSC 321. 14The principles developed in the cases under the Family Provision Act 1982, therefore, give useful guidance. 15In Re Guskett (deceased) (1947) VLR 211 the following was said: "It is necessary for the applicant to make out a case there will justify the grant of the intelligence sort. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the Court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time." 16His Honour Young J in several cases dealt with the principles governing applications to extend time under this Act. In Massie v Laundy (unreported NSWSC, 7 February 1986) he indicated that when looking at "sufficient cause" under section 16 (3) of the Act the factors which one looks at include the following: (a) is the reason for making a late claim sufficient? (b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended? (c ) has there been any unconscionable conduct on either side which would enter into the equation? 17Apparently he also accepts a view which was expressed by his Honour Needham J in Fancett v Ware (unreported NSWSC, 3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (unreported NSWSC, 31 March 1988) Powell J when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance and Guardianship of Infants Act 1916 must now demonstrate not merely a reasonable prospect but at least a strong possibility of obtaining substantive relief. That view was not accepted by Hodgson J in Basto v Basto (unreported NSWSC, 8 September 1989). 18In De Winter v Johnstone [1995] NSWCA 120, a decision of the Court of Appeal on 23 August 1995 Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23: "In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief." 19His Honour Sheller JA considered that it was only necessary to show that the application was not bound to fail. Cole J seems to have adopted the party's approach of looking at the strength of the plaintiff's case. 20The case of De Winter v Johnstone is also useful in that Sheller JA commented on the meaning of "unconscionable". He was dealing with an appeal from Master McLaughlin and he referred to the Master's comments to the following effect: "Unconscionable conduct in this context of course relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate and has then decided after the limitation period has expired to make such a acclaim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period." 21With regard to the Master's comments, his Honour observed: "... with all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However, the concept of unconscionable conduct is to be directed towards a deliberate holding off designed to lull beneficiaries into a false sense of security. There is nothing to suggest anything of that sort in the present case." 22I have heard evidence from Matthew as to why he did not make his application in time. Plainly he had no knowledge of the time limit. He thought his mother was making an application on his behalf, she having told him that was so. However, I am satisfied in the circumstances that it is appropriate to extend time.

Eligibility 23The first plaintiff clearly is an eligible person, being a former de facto spouse of the deceased. Matthew is also an eligible person, as he was part of the household and dependent upon the deceased. He lived with them from 1984, when he was eight years, to 1999, when he was 22 years. He was beyond the age of majority by four years. 24This raises the fact it is necessary under s59(1) of the Succession Act 2006 that the Court shall first determine whether there are factors warranting in the making of an application. The courts have dealt with this on a number of occasions. 25In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1)(former spouses, and sometime dependent grandchildren all household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application'". 26In Churton v Christian (1988) 13 NSWLR 241 the Court approved this statement. Priestley JA at p 252, after setting out and approving the statement, added: "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition." 27These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter [1998] NSWCA 44, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard. 28Given the above evidence, further evidence about the home being called "Matt's box", and the deceased's will in 2005 in favour of Matthew, plainly there are factors warranting the making of the application. 29In applications under the Family Provision Act 1982 the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:- "The first question is, was the provision (if any) made for the applicant inadequate for (his or her) proper maintenance, education and advancement in life? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that from arrangements to pay creditors."

Pamela Sydney's situation in life 30Pamela is 64 years of age, single and has Matthew, her son, living with her in rented accommodation. Her assets consist of cash of $50,000 and personal effects of some $20,350. She receives a disability allowance of $700 per fortnight which is consumed in her living expenses. She is not well as she suffers from anxiety, depression, panic disorders, hypothyroidism, derangement to the left knee and emphysema. 31Her relationship with the deceased was for 24 years and she put up with a lot of violence from the deceased. She stuck by him until he became impossible to live with. In part she contributed to the estate in that her brother put a sum of money into their home which was never repaid.

Situation in life of Matthew Sydney 32Matthew is 33 years of age, single, and lives with his mother. His assets amounted to $4,050. He receives a disability pension of $454.30 per fortnight. His medical situation is not good because he suffers from a chromosomal abnormality (47 XYY). He has learning difficulties and also suffers from depression, severe generalised anxiety, social anxiety, OCD and Asperger's syndrome. His anxiety and perhaps chromosome anxiety caused him to shake continuously. He has poor social skills and is sometimes so anxious he cannot leave the house. He is dyslexic and has difficulty reading. Effectively, he has never worked and it is not likely he will have useful employment. He would need help in some assisted form of encouragement in employment. He certainly had a good relationship with the deceased. The deceased thought a lot of him. The money from his father's brother actually came to Matthew and he put it into the home at the request of both his mother and the deceased. The total amount contributed by them was $75,000, a substantial sum in those days.

Discussion 33As the plaintiffs are the only persons with a claim on the deceased's bounty, I am satisfied that their circumstances are so bad that they should receive the whole of the estate equally between them. 34There is no grant of administration in respect of the deceased's estate. In Cabban v Cabban [2010] NSWSC 1443 I dealt with this situation in respect of claims under the Succession Act 2006. 35It seems to me that it is appropriate to make an order under s91(2) of the Succession Act 2006 in favour of Pamela Sydney. 36I make orders in accordance with the short minutes which I will sign and date and place with the papers. 37I note that Pamela Sydney and Matthew Sydney have given instructions that they are happy with the form of those orders which are appropriate given their circumstances.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2012

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