Fagerlund v Orford [2004] NSWSC 268

New South Wales Supreme Court

CITATION : Fagerlund v Orford [2004] NSWSC 268 revised - 6/04/2004 HEARING DATE(S) : 30 & 31 March 2004 JUDGMENT DATE : 6 April 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraphs 70 and 71

CATCHWORDS : Family Provision. Application by two stepchildren in respect of an intestate estate which passed to the deceased's siblings and their children. Discussion of whether it was appropriate for a child to expect to receive the deceased's house. Orders for legacies for the children. PARTIES : Wayne Ronald Fagerlund & Anor v Thelma Grace Orford (Estate of William Arthur Brook) Wayne Ronald Fagerlund & Anor v Thelma Grace Orford (Estate of Nola Brook) FILE NUMBER(S) : SC 2585/02; 6038/02 COUNSEL : JA Darvall for plaintiffs Mrs Bartush-Peek for defendant SOLICITORS : Marriott & Oliver for plaintiffs Turnbull Hill Lawyers for defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Master Macready

Tuesday 6 April 2004

2585/02 Wayne Ronald Fagerlund & Lynn Nola Milloy v Thelma Grace Orford (Estate of William Arthur Brook)

6038/02 Wayne Ronald Fagerlund & Lynn Nola Milloy v Thelma Grace Orford (Estate of Nola Brook) JUDGMENT 1 Master: This is the hearing of two applications under the Family Provision Act 1982 (NSW) (the Act) which have been ordered to be heard together with the evidence in each to be evidence in the other. The parties are the same but each matter concerns a different estate. 2 In the matter No 6038/02 the estate is that of the late Nola Brook who died on 30 September 1986. In manner No 2585/02 the estate is that of the late William Arthur Brook who died on 7 June 2001. The deceased had been married in 1973 and at the date of death of Nola Brook they owned as tenants in common a property at 3 Silver Spur Close Shoalhaven Heads. 3 The two plaintiffs are the children of Nola Brook. The deceased had no children of their own and the defendant, who is a sister of William Arthur Brook has obtained a grant of letters of administration in both estates. Neither deceased left a will. 4 By the time of his death, the half interest of Nola Brook in the property was never transferred to William Arthur Brook. At the date of death of Nola Brook the half interest, valued at $80,000.00 passed on intestacy to William Arthur Brook and his estate is now entitled to the whole of the property. 5 It was suggested that the plaintiffs would have a strong case in the claim against the estate of Nola brook as the two plaintiffs are of course eligible persons as children in the estate but are only category 6(d) eligible persons in the estate of William Arthur Brook. The problem with the claim against the estate of Nola Brook is that it is out of time by some 16 years. 6 As the application is out of time it is necessary for the court to consider section 16 of the Act that 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 212 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." 7 In several cases His Honour Young J (as he then was) dealt with the principles governing application to extend time under the Act. In Massie v Laundy (Unreported, NSWSC, 7 February 1986) Young J indicated that when looking at 'sufficient cause" under s 16(3) of the Act 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? 8 Apparently Young J also accepts the view expressed by his Honour Needham J in Fancett v Ware (Unreported, NSWSC, 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, NSWSC, 31 March 1988) when considering the matter at the substantive hearing Powell J leant to the view that a plaintiff seeking an extension of time under the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) must demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. This view was not accepted by his Honour Hodgson J in Basto v Basto (Unreported, NSWSC, 8 September 1989). 9 In De Winter v Johnstone (Unreported, NSWCA, 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. At page 23 he said: "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 applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief." 10 His Honour Mr Justice Sheller considered that it was only necessary to show that the application was not bound to fail. His Honour Mr Justice Cole seems to have adopted the parties' approach of looking at the strength of the plaintiff's case. 11 The case of De Winter v Johnstone is also useful in that dealing with an appeal from Master McLaughlin, Sheller J commented on the meaning of "unconscionable". At page 11 he quoted the Master as follows: "Unconscionable conduct in this context, of course, relates to such matters as whether 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." 12 His Honour then observed: "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 here directed towards a deliberate holding off designed to lull the beneficiaries into a false sense of security. There is nothing to suggest anything of that sort in the present case." 13 In the present case the plaintiffs did not lead evidence as to why they did not make a claim on their mothers estate after her death and within the time limit specified by the statute. There could be many reasons why they would not make a claim not least of which would be that they would not wish to dispossess their stepfather from the house. For them now to seek to extend time will work to the substantial prejudice of those who take on intestacy under William Arthur Brook's estate. In these circumstances it seems to me (for each of the aforementioned reasons) that is quite inappropriate to extend time and accordingly I decline to extend time in matter No 6038/02. 14 In these circumstances the plaintiff's claims can be dealt with in proceedings 2585/02 in respect of the estate of the late William Arthur Brook. 15 As there was an intestacy in the estate of William Arthur Brook, those taking on intestacy include: · Thelma Grace Alford a sister of the deceased as to one-third of the estate, · David Lloyd Brook a brother of the deceased as to one-third of the estate, · Richard Walter Brook, William Edward Brook, Rhonda Gay Radcliffe and Katherine Glenda McKinley being the children of the deceased brother Alonzo as to a 1/12 share each. The assets in the estate 16 The estate of the late William Arthur Brook now comprises the following: