New South Wales Supreme Court CITATION : EDMUNDS v TRASS [2001] NSWSC 395 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5160/1999 HEARING DATE(S) : 9, 10 May 2001 JUDGMENT DATE : 22 June 2001 PARTIES : NICOLE ANNE EDMUNDS & CORRINE ANNE WEBB v CORAL ANN TRASS JUDGMENT OF : Master Macready at 1 COUNSEL : Ms K. Ottesen for plaintiffs G.P.F. Rundle for defendant SOLICITORS : Baldock Stacy & Niven. Orange, for plaintiffs R.J. Nolan & Co, Dubbo, for defendant CATCHWORDS : Family Provision. Application by daughters of first marriage. Estate passed to second wife. Not a large estate. In the circumstances no order should be made. Discussion of whether special circumstances existed under s28(5)(d) of the Act. Re Guskett (deceased) (1947) VLR 211 Massie v Laundry (unreported 7 February 1986) CASES CITED : De Winter v Johnston Court of Appeal 23 August 1995 Sheller JA Singer v Berghouse (1994) 181 CLR 201 Goloski v Goloski (unreported 5 October 1993 DECISION : Paragraph 57 - 1- 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Ronald Norman Trass who died on 7 February 1998. He was survived by his two daughters from his first marriage, who are the plaintiffs in the proceedings, the defendant who was his second wife and his first wife. His first wife has been given notice of the proceedings and makes no claim. 2 By his will made 7 March 1997 the deceased appointed the defendant his Executrix. The will gave his jewellery and clothing to the plaintiffs, his guns to his son-in-law and the rest of his estate to the defendant. At the date of death the assets in the estate comprised the following:- Units 1 and 5/282 Macquarie Street, Dubbo $110,000.00 Money in banks $ 6,910.80 Holiday and long service leave $ 2,807.00 $ 11,266.68 One share in Trass Holdings Pty Limited $ 1.00 Debt due from the Trass Family Trust $ 5,008.21 3 Although the precise form in which it appeared in the Probate application is not before me it is apparent that there was also reference to a debt due by the deceased of $250,000. This was in fact an obligation which he had secured by way of guarantee to a bank in respect of a business loan to the business in which he and two other persons were involved. 4 After some dispute between the parties the items of jewellery were distributed to the plaintiffs and the assets in the estate have been transferred to the defendant. Effectively, this was the two units to which I have already referred. After the date of death the defendant received $117,593.19 which was the whole of the deceased's superannuation pursuant to a Trust Deed for the Australian Meat Industry Superannuation Trust. The deceased had carried on two businesses prior to his death. One was through a company, Imak (Western) Pty Ltd which was a meat wholesaler. Mr Macpherson, his partner in that business, had died in 1996. At the time of the deceased's death that company was being liquidated to enable distribution of Mr Macpherson's shareholding in that company. After liquidation its business was carried on by the other company, Dubbo Meat Centre Pty Limited which was a retailer and distributor of meat in the Dubbo and Orana area. The deceased's interests in those companies were held by his family trust known as the "Trass Family Trust" the corporate trustee of which was Trass Holdings Pty Ltd. Following the liquidation of Imak (Western) Pty Limited it was proposed by the liquidator to make distributions to the deceased's estate and Mr Macpherson. In respect of the deceased's estate $83,704.51 was paid to the solicitor for the estate, Mr R.J. Nolan while a dispute as to its ownership through the trust was resolved. This was resolved by the settlement of District Court proceedings in 1999 as result of which the defendant received $20,000 and the two plaintiffs each received one half of the balance of that sum. 5 There have been costs incurred in the estate. The plaintiffs' costs are likely to be in the order of $31,125 and those of the defendant $12,400. However, those estimates were based upon a one-day hearing. The hearing occupied two days. 6 The present proceedings were commenced on 22 December 1999 and, accordingly, were out of time. An application was made for an extension of time pursuant to s 16 of the Act. 7 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." 8 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? 9 He also accepts 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). 10 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." 11 In order to consider the first question of whether the explanation for the delay is sufficient it is useful to note generally the chronology in relation to the family of the deceased and steps taken up to the commencement of proceedings. 12 The defendant was born on 24 July 1950. The plaintiff, Corinne, was born on 18 February 1976 and her sister, Nicole, born on 15 February 1971. In 1985 the deceased and his former wife separated. Shortly thereafter in 1985 or early in 1986 the deceased commenced to live in a de facto relationship with the defendant. By 1990 Nicole had left school and was working full time with her father at the Dubbo Meat Centre. On 7 March 1998 the deceased made a will. In that will the defendant who was described as the wife of the deceased and the evidence does not reveal when they married. 13 On 6 February 1998 there was a meeting at which the deceased, Nicole, the defendant and a number of the deceased's advisers were present. There was some discussion about his estate. At that time he indicated that he owed nothing and that his share in the Dubbo Meat Centre he thought, according to the plaintiff, Nicole, was worth half a million dollars. The defendant recalls that he said it was worth $300,000. The deceased also referred to the fact that his superannuation was worth $150,000. On 7 February 1998 the deceased died. A week or so later, according to the plaintiffs, they briefly saw a will but they were not given a copy and they were uncertain as to their entitlements. In March 1998 Nicole saw solicitors, Booth Brown Samuels & Olney in order to obtain a copy of the will. That request was refused on 16 April 1998 There does not seem to be any explanation for the extraordinary refusal of such a reasonable request. 14 On 1 May 1998 the superannuation payment was made to the defendant in the sum of $117,593.19. Nicole had been working at the Dubbo Meat Centre after the date of death and on 27 July 1998, according to her, she was dismissed. The defendant's recollection is that she resigned. That led to some unfair dismissal proceedings brought by Nicole but what happened in relation to those proceedings is not before me in the evidence in this case. A day later on 28 July 1998 there was a resolution for the issue of 150,000 shares in Dubbo Meat Centre. This included 50,000 shares to the defendant and two parcels of 50,000 each to Mr John Tratt and Mr Mark Knaggs who were involved in the running of that business. This had the effect of reducing the interest of the Trass Family Trust in the company from 67% to 0.044% of the capital. Once the evidence in the case had been heard it transpired that this resulted from the fact that the bank which had advanced monies to the business required that further provision be made to secure the bank on the deceased's death. The defendant, Mr Tratt and Mr Knaggs made the equity contribution of $150,000. Initially it was only $100,000 as the defendant's contribution was not made until 1 July 1998. In August 1998 Nicole saw Mr Bucherine of Nelson Keane & Hemmingway in connection with the unfair dismissal proceedings. She says that she then started to discover her interest as a shareholder and director of Trass Holdings Pty Limited, the trustee of the Trass Family Trust. She also discovered the payment in respect of the $83,000 and in due course the District Court proceedings, to which I have referred, were commenced by Trass Holdings Pty Ltd against the defendant. 15 On 31 October 1998 the defendant was injured while on holidays. I will return to the details of this injury later. 16 In November 1998 the plaintiffs' solicitors sought information about the application for probate and this request was repeated in January 1999. Probate was granted on 12 February 1999 to the defendant. Eventually after a number of requests on 18 March 1999 the defendant's solicitors provided a copy of the will and probate to the plaintiffs' solicitors. According to their evidence the plaintiffs were advised (a) that they had twelve months from the date of grant of probate to bring an application under the Family Provision Act, (b) that on the basis of inventory of property the estate was not large enough to warrant a claim for provision and (c) that it would cost more than it was worth. 17 The plaintiffs then instructed their solicitors to focus on obtaining the jewellery and personal items to which they were entitled. On 16 March 1999 and 17 March 1999 there was correspondence, to which I will refer in more detail, asking about personalty and an explanation for the $250,00 liability. A clear explanation that it related to a guarantee in existence at the date of death was given. On 14 April 1999 advice was given by the defendant's solicitors that the debts had been paid and it was proposed to transfer the estate to the defendant. 18 On 16 April 1999 the solicitors for the plaintiffs wrote to the defendant's and said, "We have now been instructed by our clients that they do not intend to contest the will. We have been instructed to request the jewellery and items of clothing be immediately delivered to our clients or be made available for immediate collection and we would be grateful if you could arrange for this to be done." 19 There was correspondence about the exact nature of that jewellery and in a letter of 1 July 1999 the solicitors for the plaintiffs wrote and said that their clients were prepared to accept the various items in full settlement of their entitlement pursuant to the will. 20 On 2 July 1999 after a rollover of an investment the defendant paid the $50,000 for the shares which she had agreed to subscribe to earlier in order to satisfy the bank's requirements. 21 On 7 August 1999 the period in which the application should have been made expired. On 27 October 1999 there was a Deed of Compromise and Release between Trass Holdings Pty Ltd and the defendant in which $20,000 was paid to the defendant and the balance of the monies to the company which were then distributed between the two plaintiffs. In the course of that litigation the details of the allotment of shares became known to the plaintiffs and they sought advice on the diluting effect that that had on the shareholding in Dubbo Meat Centre. A new solicitor was consulted because the solicitor then acting had a conflict of interest. On 3 December 1999 the plaintiff Nicole was referred to her current solicitors and saw them on 15 December 1999. The summons was filed on 22 December 1999. 22 A number of matters were suggested by way of explanation. The first of these was the failure to provide a copy of will or the probate application. This difficulty disappeared by March 1999 well within the time limit for making the application. It seems fairly clear that as a result of the advice given in March 1999 the plaintiffs decided at that stage not to proceed with the application under the Family Provision Act. Their information was, and I am prepared to accept their evidence, that they were told they had 12 months from the date of grant of probate to commence proceedings. Such a time would expire in February 2000. The fact of the matter is that they decided not commence proceedings in 1999 and, according to Nicole, she effectively put the proceedings out of her mind until after she had dealt with the other proceedings against the estate and her unfair dismissal matter. The plaintiffs' knowledge as to how long they had to commence the proceedings I would have thought would be one of the reasons for the proceedings being commenced out of time. They changed their mind and decided to commence proceedings. The circumstances in which that happened are probably best considered under whether there has been any unconscionable conduct. 23 The nub of the unconscionable conduct is said to be the conduct by the plaintiffs and their solicitors in making statements that they did not intend to "contest the will" in a context where they were settling a dispute as to jewellery. That is an ambiguous statement in the context of there having been a grant. It could either mean seeking to set aside the grant or bringing proceedings under the Family Provision Act. It seems that the plaintiff, Nicole, understood it as not preventing a claim under the Act. In her affidavit of 31 October 2000 in paragraph 6 she said the following:- "Subsequently, there followed lengthy correspondence between my solicitor and the defendant in relation to the jewellery and personal items in clause 3 of the will. The defendant's solicitors refused to provide any of the items while my sister and I reserved our rights to contest the will. I sought the advice of my solicitor, saying words to the effect. 'If we say that we will not contest the will, does that mean we could never do anything about it?' My solicitor said: 'No. It just means that you accept that these items are the personal jewellery and clothing that was left to you in the will.' In the belief that all this meant that we would not be able to raise again what constituted the jewellery and personal items in the will, I instructed my solicitor to advise the defendant's solicitors that we would not contest the will." 24 There is no doubt that the defendant and her advisors understood the communications from the plaintiffs on the basis that there would be no challenge under the Family Provision Act. After the letter of 16 April the defendant in fact arranged for the transfer of the real estate into her name and took other steps consistent with this belief. 25 In De Winter v Johnston a decision of the Court of Appeal on 23 August 1995 Sheller JA said at page 11 of the judgment the following:- "In the present case the Master found that there was no prejudice to the other beneficiaries on account of delay and that finding is not seriously challenged. The Master referred to unconscionable conduct and said: 'Unconscionable conduct in this context, of course, relates to such matters as where 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 claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period. 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 there directed towards a deliberate holding off designed to lull he beneficiaries into a false sense of security. There is nothing to suggest anything of that sort in the present case." 26 Although the plaintiffs' conduct may not have been deceptive the action of their solicitors I would have considered quite deceptive. They should have well known that the defendant's solicitors would have understood the matter as they in fact did. 27 However, there is no evidence of any detrimental effect on the defendant as a result of that deception and, accordingly, I would not refuse the application on this ground. Prejudice 28 There are two matters suggested as prejudice. One is the dealing in the estate by the defendant after the promises and the other is the question of entering into the Deed of Compromise in October 1999. As far as the first matter is concerned, it does not seem to me that the fact that the defendant took a transfer of the estate properties demonstrates any prejudice which she has suffered. It is not as though she took action such as incurring liabilities which might lead to some prejudice. The other matter is the entering into the deed. That deed contained a release by the defendant for any claim she might have in her capacity as executrix of the estate of the Ronald Norman Trass against the trust. Thus, if any amounts were due by the trust to the deceased those would have been forgiven. According to the Probate application $5,008.21 was due by the deceased to the trust and this the defendant has thus waived. If the plaintiffs are successful this matter can be satisfactorily be taken into account in any order the court makes. I am satisfied that there is no prejudice which would lead me to refuse the application for an extension. 29 I turn to consider whether there are prospects of success in the event that time was to be extended. 30 In applications under the Family Provision Act 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 there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." 31 I turn to consider the position of the plaintiff, Nicole Edmunds. The plaintiff is separated from her husband but she has two young children. She and her husband have a property at 9 Charlotte Street, Dubbo worth $106,000 upon which there is a mortgage of some $80,000. She owns a Nissan Puslar worth $23,000 and has a half share of a loan to AVCO of $5,000 and loans to FAI and AGC of some $3,000. She also owes her mother $3,374. She thus has net assets of some $37,625. Her income based on her part time work, parenting payment, family assistance and child support is in the order of $583 per week. Her expenses are slightly less, namely $535 per week. She is in a difficult situation and is just surviving as a single mother. Her father had made some provision for her during his lifetime in that he gave her $16,000 after she married so that she could make extensions to her house. From time to time he would give Nicole and her sister small gifts of $100 or so. 32 The plaintiff Corinne Webb is presently 34 years of age, married and has two children aged 3 years and one year. She and her husband have a house at 11 Birkdale Close, Dubbo worth $230,000, a 1991 Commodore worth $7,000, savings of some $1,200 and some NRMA shares. They have a mortgage of $34,000. She looks after her children at home. Her husband's income is a net figure of $498 per week and she receives a family allowance of $163.80. Their expenses of $615 per week substantially use up the total income of $661. She points to the difficulty her husband has with his job due to a reduction in overtime. She would like to repay her mortgage and take a holiday if some provision was made for her out of the estate. 33 It is necessary to turn to the defendant's situation in order to see whether it is appropriate to make some order in favour of the plaintiffs. She is aged 51 and is now living in a de facto relationship. She knows little of her partner's asset position other than he has a property on the Gold Coast which is subject to a mortgage. Her own asset position is now as follows:- Her home 9 Coral Crescent, Dubbo $195,000 2 units 1 and 5/282 Macquarie Street Dubbo 82,000 Cash 16,000 1987 Mercedes motor vehicle 10,000 Furniture and effects 50,000 Jewellery 5,000 Superannuation 68,017.69 First State Superannuation 21,190 Shares in Dubbo Meat Centre Pty Ltd 50,000 Telstra shares 13,900 34 So far as the investment in Dubbo Centre Pty Ltd is concerned she has so far received no return on that investment. There is no evidence giving the value of that investment. She receives net fortnightly payment of $976.78 from her employment after deduction of tax and a sum of $155 which is her contribution to her superannuation. She receives income from the units which is somewhat uncertain. After a period of vacancies it seems that the flats are now let for a total rental of $190 per week. The expenses would be in the order of $2,219 per annum thus producing a net income of some $7,281 per annum. Because of vacancies and vandalism there has been little received by way of rent over and above the expenses up until the present time. Her de facto partner earns about $400 per week. He pays her medical fund and shares telephone and food bills at the home. 35 The defendant suffered an injury to her foot when it was run over by a ride on lawn mower and she walks with difficulty. She was lucky she did not have her foot amputated. Dr Andrew Redgment's report of 21 February 2000 said that the injury would in most workers be enough to prevent them from returning to the workforce and that he would have doubts about the defendant's ability to remain in the workforce in the long term. The fact of the matter is that she has managed to keep her employment although there is some physical difficulty on her part. 36 If an order under sections 23 or 24 designating property as notional estate is to be made it can only be done if the court is satisfied that an order for provision ought to be made on the application. This requires a consideration of the position of the defendant and the plaintiffs in relation to the estate of the deceased. It also requires consideration of what was available in the estate or notional estate of the deceased from which some appropriate order may be satisfied. 37 The matter has been difficult to follow because the evidence of the defendant did not clearly set out what were the estate's assets and liabilities and what had happened to them. This has only been elucidated by cross-examination at the trial. It seems that the relevant assets that would be available are as follows:- 1. The 2 units presently worth 82,000 2. The Mercedes motor vehicle 10,000 3. Telstra shares 13,900 4. The payment from the superannuation fund to the defendant. This was in the sum of $117,593.19 and I am satisfied from this the defendant did in fact pay $46,104.75 in payments of the deceased's debts. The balance available was $71,488.44. 5. A payment of $20,000 pursuant to the compromise. 38 Widow's claims are frequently the subject of applications in this Court. The Court of Appeal in Goloski v Goloski (unreported 5 October 1993) has referred to formulations of this standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott, which was approved by the Court of Appeal on 24 April 1986. There his Honour said:- "Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and, third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring". 39 In the present case the deceased and the defendant had lived together as de facto and then married partners for some 13 years before the deceased's death. There is nothing to suggest that the relationship was other than happy and there is evidence that from to time the plaintiff had mortgaged her house to secure advances to the deceased in respect of his business. Fortunately for the plaintiffs the defendant does own a house which she and the deceased resided in from at least 1997. Accordingly, one needs to see whether the provision of the two units, car and cash to which I have referred would be sufficient provision for this defendant. 40 The defendant owns a house which is not subject to a mortgage. She is in employment and will most likely continue in that employment until she retires when she will receive her superannuation presently standing at $89,000. 41 On the evidence there is no suggestion that her income is presently insufficient to support her until she retires. Leaving aside her old car she has been provided from the estate and by way of superannuation the following:- 1. The two units worth $82,000 2. Funds to make the investment in Dubbo Meat Centre Pty Ltd of $50,000 3. Telstra shares worth $13,900 4. Cash of about $21,000 42 Such assets totalling $165,900 will be reduced by her own costs of these proceedings if she succeeds and will be even further reduced if the plaintiffs' claim is successful. 43 In the circumstances of this case the modest provision which the defendant receives from the estate should not be disturbed. 44 Although it is not necessary to do so I will deal with some of the issues that would have arisen on the decision whether to designate the two units as notional estate. 45 Section 27 of the Family Provision Act is in the following terms:- "(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered: (a) the importance of not interfering with reasonable expectations in relation to property; (b) the substantial justice and merits involved in making or refusing to make the order; and (c) any other matter which it considers relevant in the circumstances. (2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to: (a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person; (b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration; (c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be; (d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income; and (e) any other matter which it considers relevant in the circumstances." 46 Other than general statements by the deceased that the plaintiffs would be well provided for there is nothing in the evidence which touches upon the matters which I have to consider under s 27(1)(a) or (b). 47 Section 28 includes further restrictions on the power of the Court to designate property at notional estate. Section 28(5) provides as follows: "On an application in relation to a deceased person, being an application: (a) made pursuant to an order under section 16 allowing the application to be made; or (b) for an order under section 8 for additional provision, the court shall not make an order designating property as notional estate of the deceased person be reason of a prescribed transaction or a distribution unless it is satisfied: (c) that: (i) the property was the subject of the prescribed transaction or distribution; (ii) the person by whom it is held holds the property as a result of the prescribed transaction or distribution as trustee only; and (iii) the property is not vested in interest in any beneficiary under the trust; or (d) that there are other special circumstances (including, in the case of an application made as referred to in paragraph (a), the incapacity during any relevant period, of the person by or on whose behalf the application is made) which justify the making of an order so designating the property." 48 In relation to this case the relevant section is Section 28(5)(d). Apart from stating incapacity as a special circumstance the subsection gives no other indication of what constitutes such special circumstance. However it is clear that Section 27 applies when a claim is made both before and after the time limited by Section 16. Section 28(5) in a case where an extension is to be allowed imposes is a further requirement over and above the matter which a court will consider under Section 27. It is notable that in Section 28(5)(d) the word "other" is used in describing special circumstances. That I think indicates view that there has to be something else over and above what is dealt with in Section 27. 49 The special circumstances which were said to exist in this case were as follows:- 1. The misleading and inaccurate inventory of property. 2. The wrong advice given by the solicitor. 3. The failure of the defendant to clarify the true condition of the estate. 4. The likelihood the defendant has received monies and property to which she was not entitled to the detriment of the plaintiffs. 50 I have earlier set out what was the inventory of property in the Probate application. There were three items left off the inventory. One was the Mercedes Benz car, the second the Telstra shares and the third was said to be the entitlement to superannuation. 51 It seems to me that if there had been a relevant misrepresentation, which affected the plaintiffs' decision whether to proceed with a claim under the Act, then this of itself might be special circumstances. Of its nature any such misrepresentation would be one which would operate on the minds of the plaintiffs up until they did, in fact, make a decision to commence proceedings. 1. The misleading and inaccurate inventory of property. 52 In the present case it is clear that the plaintiffs were well aware of two assets that had been left out of the probate application. One was the Mercedes Benz and the other was the Telstra shares. They were aware of these assets because they were the ones who reminded the defendant that they had been left out. 53 So far as the superannuation is concerned the short answer is that there was no obligation to disclose that in the probate application or otherwise disclose it to the plaintiffs. In any event on their own evidence the plaintiffs knew from the discussion on the day before the deceased died that there was a sum which was available by way of superannuation. 2. The wrong advice given by the solicitor. 54 By this is meant the advice not to proceed with the application. This really is a subset of the previous matter in that it is said that because of what would be described as misrepresentations in the probate application the advice was wrong. In this respect it is important to note that the position regarding the liability of $250,000 was made quite plain in the correspondence in March and April 1999. 3. The failure of the defendant to clarify the true condition of the estate. 55 Many of the submissions made on this point related to the estate's failure to properly set out the assets in the estate after proceedings were commenced. This is not relevant in terms of seeing whether there are special circumstances which justify the making of an order for notional estate notwithstanding the late making of the application. The circumstances would have to relate to a period prior to the commencement of the proceedings. 4. The likelihood the defendant has received monies and property that she was not entitled to to the detriment of the plaintiffs. 56 The only factual matter which was raised in this regard was an ANZ Bank account which was slightly in excess of $6,000 at the date of death. It was suggested that the deceased used this account for personal and business purposes. This may be true but there is no evidence to enable me to accurately determine how much of this account belonged to the trust or alternatively the deceased. However, there is a fundamental reason why I think that this is not a matter which could be special circumstances. Assuming that the defendant did receive some monies from that account which she applied to meet the debts of the estate, which monies belonged to the trust, this is not the medium to complain about them. I cannot see how that fact rationally would be a special circumstance which would be a reason for the court now to designate property as notional estate. If there is any complaint the proper complainant is the trustee of the trust who may bring proceedings against the defendant if so advised. 57 In my view even if I were in a position where it was appropriate to designate property as notional estate I would not be satisfied that there are special circumstances under s 28(5)(d) which apply to enable the court to make such a designation. Accordingly I dismiss the Summons. I will hear the parties on issues of costs. ********* Last Modified: 06/28/2001 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.