DE WINTER v JOHNSTONE [1995] NSWCA 120

DE WINTER v JOHNSTONE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and COLE JJA 25 November 1994, 23 August 1995

[1995] NSWCA 120

TESTATORS FAMILY MAINTENANCE — time for making application Extension of time — Whether sufficient cause shown for application not being made within prescribed period — Matters relevant to exercise of discretion to grant, or to refuse, extension of time

Sheller JA INTRODUCTION

By a summons filed in the Equity Division on 8 April 1992 the appellant, Veronica Graham de Winter, sought an order pursuant to s16(2) of the Family Provision Act 1982 (FPA) that the period in which she might make application for an order pursuant to s7 for provision out of the estate of the deceased, Graham Routh Canavan, be extended to allow such application to be made. On 22 October 1992 Master McLaughlin dismissed the summons and ordered the appellant to pay the defendants' costs. The appellant appeals against the Master's decision. I have had the benefit of reading the draft judgment prepared by Cole JA. Accordingly it is unnecessary for me to repeat the facts in detail.

The appellant was one of four daughters of the deceased, who died, aged 85, on 5 September 1988 leaving a will dated 13 August 1988, probate of which was granted to the respondents, two of the appellant's sisters, Meriel Barbara Johnstone and Ailsa Barbara Halliday. Pursuant to s16(1) of the FPA the prescribed period within which an application for an order under the Act must be made, unless extended by the Court, is eighteen months after the death of the deceased person. The appellant's application was made over two years after the expiry of the prescribed period.

The appellant was born on 27 September 1950. In 1971 she married Alexander McCracken Danskine. In April 1991 they separated. At the date of the hearing before the Master she was living in rented accommodation caring for their two children, aged 13 and 10. The two children were being educated at private schools. Her property consisted of an old motor car and some furniture. Her weekly income was $780. Her weekly expenses were $957. Of this $720 was spent on or related to expenses to do with the two children. She had debts and financial commitments in some thousands of dollars. Until January 1992 the appellant's husband assumed sole responsibility for paying the school fees. In January 1992 a consent order was made in the Family Court whereby, it was said, the responsibility for the payment of the school fees for the two children passed from the appellant's husband to her.