Maxwell v Public Trustee [2001] NSWSC 764

New South Wales Supreme Court

CITATION : Maxwell v Public Trustee [2001] NSWSC 764 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4731/2001 HEARING DATE(S) : 28/08/2001 JUDGMENT DATE : 28 August 2001

PARTIES : Marie Eleanora Maxwell v Public Trustee JUDGMENT OF : Master Macready at 1

COUNSEL : G. McVay for plaintiff M. Bridger for defendant SOLICITORS : Farmer Campbell Edmunds for plaintiff Hardman & Company for defendant CATCHWORDS : Family Provision. Application by four children. One commences proceedings in time and the others are joined as plaintiffs out of time. Held that the joinder did not operate to extend time under the Act. Insufficient explanation for late application by one plaintiff. Orders made in favour of three plaintiffs. DECISION : Paragraphs 27 - 29

- 1 - 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Stanley Victor Pisani who died on 30 July 1997 aged 84 years. The deceased was survived by his four children who are the plaintiffs in this action. He was also survived by his second wife Olive Pisani. The deceased's first wife died on 12 September 1999. Under his will, made on 1 November 1983, the deceased left the whole of his estate to his second wife, Olive Pisani. He provided that if she predeceased him the estate should go to his children equally. 2 The assets in the estate have been reduced to cash in the amount of $270,803.63. The costs of the plaintiffs are estimated at $24,593, those of the defendant at $22,000. This leaves the estate having the sum of $224,210, assuming some of the plaintiffs are successful. 3 I will deal with a some of the history of the family. Olive Pisani, the deceased's wife, was born on 14 June 1911. The deceased was born on 1 April 1913. The deceased first married in 1937. Marie Maxwell was born on 3 August 1937, Victor Pisani on 23 March 1940, Rosalie Childs on 5 May 1947 and Stephanie Griffith on 10 November 1948. In 1954 the deceased and his first wife separated and subsequently they divorced. In 1961 the deceased married his second wife Olive Hampton Hinds. The matrimonial home was purchased in 1962 and the will was dated 19 November 1983. At the date of death on 30 July 1997, the deceased's widow was living in the house at Tempe. By November she moved and lived with her brother as her dementia was progressing and she could not live alone. It was on 11 November 1997 that the first plaintiff commenced these proceedings. Also in November there is an application for the Guardianship Board and the deceased's widow went to the Hume Nursing Home at Greenacre. Orders were made in December 1997 which appointed the Protective Commissioner to manage her estate and the Public Guardian was appointed as her guardian for some twelve months. In December Mrs Pisani went to Willandra Nursing Home and she continued to reside there thereafter. A year later, in December 1998, the Guardianship Board determined that the widow was no longer in need of a guardian and Mrs Maxwell and her husband were made the persons responsible for her treatment. She continued to visit her on a fortnightly basis. 4 It was on 10 October 2000 that an order was made in these proceedings that the second, third and fourth plaintiffs be added as plaintiffs to the proceedings. That event occurred well outside the 18 months which is allowed for the making of the applications by those parties. There was a submission that in the circumstances of an order for joinder having been made, in fact the time that this application having been made was the time when the original summons was filed on 11 November 1997. Section 16(2) and (3) are in the following terms: "(2) An order under section 7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the Court may, having regard to all the circumstances of the case but subject to subsection (3), by order, allow.