BARKER & ANOR v MAGEE [2001] NSWSC 563

New South Wales Supreme Court

CITATION : BARKER & ANOR v MAGEE [2001] NSWSC 563 revised - 19/10/2001 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1624 OF 2000; 4443/2001 HEARING DATE(S) : 25/06/01, 17/07/01, 31/08/01, 28/09/01 JUDGMENT DATE : 28 September 2001

PARTIES : KEVIN MICHAEL BARKER & BRENDAN ADAM BARKER BY HIS TUTOR KATHRYN COMPTON v KERRY MARGARET MAGEE WENDY IRENE BARKER v KERRY MARGARET MAGEE JUDGMENT OF : Master Macready at 1

Mr. R. Tregenza for plaintiffs COUNSEL : Mr L. Ellison for defendant Mr G.R. Graham for Wendy Barker Watson Stafford for plaintiffs SOLICITORS : John Fisicaro & Co for defendant Gerard O'Donnell for Wendy Barker CATCHWORDS : Family Provision. Application by children of former wife. Designation as notional estate of property jointly owned by deceased and his defacto wife. Order for legacies out of notional estate. Consideration of s 28(5)(d) of the Family Provision Act 1982. DECISION : Paragraph 57

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1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Brian Barker who died on 19 May 1999. The deceased was survived by his two former wives, the defendant who was his de facto partner at the date of his death and his two children who are the plaintiffs in the proceedings and the children of the deceased's first wife, Kathryn Anne Compton. She does not wish to make a claim against the estate of the deceased. Notice was given to the deceased's second wife, Wendy Baker, after the commencement of the hearing. As a result she commenced her own proceedings and these have now been heard with the adjourned hearing of 1624 of 2000. I have ordered both matters to be heard together and the evidence in one to be evidence in the other. There was no requirement for further cross-examination of the plaintiff who has already given evidence on the first hearing. There was further cross-examination of the defendant. 2 The deceased left a will dated 24 August 1998 under which he appointed the defendant as Executrix and gave her the whole of his estate. No probate was taken out in respect of that will because the home and a Queensland property which was jointly owned by the defendant and the deceased passed to the defendant by survivorship. She also received other assets by way of payment of a superannuation benefit. The deceased was a member of the Royal Australian Navy and his survivors were entitled to substantial benefits on his death. There has been a Grant of Letters of Administration to Mrs Compton for the purpose of bringing these proceedings. 3 At the date of his death the deceased was entitled to long service and recreation leave of some $31,056, he had a car and his interests in certain jointly owned properties. He had some liabilities and a claim by his former wife. The two properties which were jointly owned by the deceased and the defendant were their home at 10 Raven Place, South Windsor which was subsequently sold for $165,000. That was then subject to a mortgage of $104,000. They also jointly owned a property 9 Amelia Palms, Redlynch, Queensland near Cairns. That property was then subject to a mortgage of $109,000 and was valued a little less than that figure. 4 The debts of the deceased were in part repaid by insurance policies after his death and the defendant received substantially what was said to be an ex gratia payment for all his long service and recreation leave. There was also a superannuation benefit of $445,000. That was paid as to $37,813.16 on account of the plaintiff, Brendan, he then being an infant and the balance of approximately $408,000 was paid to the defendant she having been his de facto spouse at the date of death. The plaintiff, Wendy Barker had made a claim but that had been disallowed. 5 There have been costs incurred on each side, the plaintiffs' being $37,500 and the defendant's being $25,000 making a total of $62,500. 6 It is useful to set out a little of the history of the families. The defendant was born in 1956 and the deceased was born in 1957. The deceased married for the first time on 4 August 1979 to his first wife Kathryn. They had two children Kevin born on 27 January 1981 and Brendan born on 29 September 1983. The deceased and Kathryn separated in 1989 and their marriage was dissolved in July 1990. 7 It was in 1989 that the deceased and Wendy Barker commenced cohabitation at Wendy's mother's place at Heckenberg in New South Wales. Wendy Barker married the deceased on 11 August 1990. They lived there until 1992 when they moved to a rented home supplied by the Department of Defence at Voyager Point. In late 1992 Wendy received a compensation award of some $120,000 for injuries she had received. In 1994 the deceased and Wendy Barker moved back to her mother's home at Heckenberg. In 1995 the deceased and Wendy Barker separated although for a time they continued to live under the same roof. There was a problem with alcohol which led their separation. In March 1995 the deceased and the defendant first met. The deceased and the defendant started to live together in October 1995. The deceased made his will on 24 August 1998. His children left school in that year. The deceased paid maintenance for his children in accordance with court requirements up until they turned 18 years. The deceased died on 19 May 1999 and the summons in 1624 of 2000 was filed within time. The summons in 4443 of 2001 was filed on 7 September 2001 and, accordingly, is out of time. 8 As the application is out of time it is necessary for the court to consider section 16 of the Family Provision Act which allows an application to be made notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said: "It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. 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." 9 His Honour Young J has in several cases dealt with the principles governing application to extend time under this Act. In Massie v Laundry (unreported 7 February 1986) he indicated that 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? 10 He also accepts apparently a view which was expressed by his Honour Needham J in Fancett v Ware (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 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 Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported 8 September 1989). 11 In De Winter v Johnston, a decision of the Court of Appeal on 23 August 1995 his Honour 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 application for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief."