Easterbrook v Young [1977] HCA 16

High Court of Australia Barwick C.J. Mason and Murphy JJ. Easterbrook v Young [1977] HCA 16

ORDER Appeal allowed. Order of the Supreme Court of New South Wales set aside and in lieu thereof order:

(a) that the time for making an application by the appellant under s. 5 of the Testator's Family Maintenance and Guardianship of Infants Act, 1916 N.S.W., as amended be extended until and including 13th July 1973;

(b) that the respondent do all things necessary to vest the entire interest in the trust property, namely that portion of land contained in Certificate of Title Vol. 3280 Fol. 68, in the appellant.

Cur. adv. vult.

The Court delivered the following written judgment:—

1977, Mar. 15. Barwick C.J., Mason and Murphy JJ.

On 13th July 1973, the appellant applied to the Supreme Court of New South Wales under the Testator's Family Maintenance and Guardianship of Infants Act, 1916 N.S.W., as amended ("the Act"), first, for an order under s. 5 (2A) of the Act extending the time within which an application might be made under s. 3 (1A) of the Act for her maintenance out of the estate of her late husband and, secondly, for an order providing for such maintenance.

The deceased left a small estate of which the only asset of consequence was a cottage, used in his lifetime as the family home. He died intestate. Letters of administration were granted in 1959 to the respondent, who is one of two sons of the marriage. By dint of the provisions of the Wills, Probate and Administration Act, 1898 N.S.W., as amended, the appellant and her two sons were each entitled to one third of the estate: and by that Act, the respondent on appointment as administrator became a trustee of the intestate estate for the appellant, himself and his brother: see ss. 61A and 49 (1). The debts and expense of administration having been paid, the respondent in 1959 published a notice of his intention to distribute the estate of the deceased amongst the persons entitled thereto. In 1960 the title to the cottage held under the provisions of the Real Property Act, 1900 N.S.W., as amended, was duly transmitted to the name of the respondent as administrator. A Registrar-General's caveat against dealings protected the interests of those beneficially entitled. No beneficiary sought a transfer to himself of a share in the property.