Papadopoulos v Papadopoulos [2003] NSWSC 960

New South Wales Supreme Court

CITATION : Papadopoulos v Papadopoulos [2003] NSWSC 960 HEARING DATE(S) : 22/10/03 JUDGMENT DATE : 28 October 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : (1) I extend time for making the application up to and including 19 November 2002.; (2) That in lieu ofthe provisions in clause 3 of the will the plaintiff receive a bequest of the deceased's in terest as tenant in common in the matrimonial home at 12 Piper Street, Argenton together with any furniture contained therein absolutely.; (3) Subject to submissions, the first defendant's costs on an indemnity basis and the plaintiff's costs on a party and party basis be paid or retained out of the estate of the deceased.; (4) I make no order as to the second defendant's costs.

CATCHWORDS : Family Provision - Widower left a life estate in a half share of matrimonial home - Small estate - Widower given absolute interest PARTIES : Ilias Papadopoulos v Doris Papadopoulos and anor FILE NUMBER(S) : SC 5559/2002 COUNSEL : Mr L. Ellison for plaintiff Mr G. Graham for 2nd defendant SOLICITORS : Harvey Law Firm for plaintiff John A.Ticehurst & Co for 2nd defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

Tuesday 28 October 2003

5559/2002 ILIAS PAPADOPOULOS v DORIS PAPADOPOULOS JUDGMENT 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Germania Papadopoulos who died on 4 July 1997. Her widower the plaintiff, her two daughters and several grandchildren survived the deceased. The will of the deceased 2 The deceased made her last will on 9 August 1991. Under that will she appointed the plaintiff her executor and gave him her interest as tenant in common in the matrimonial home at 12 Piper Street, Argenton together with the furniture upon trust for the plaintiff for life with remainder in three separate shares. A one third share was to be held for her three grandchildren, Leo Papadopoulos, Tanya Papadopoulos and Sophia Papadopoulos. Another share was to be held for her daughter, Irene Soklaridis who is the second defendant in the proceedings. The third share was to be held for her daughter, Maria Petrou. That daughter died after the deceased and accordingly that share passed in accordance with her will, if any, or to those entitled on intestacy. The first defendant is the executrix appointed under the will and is the widow of the plaintiff's son. She has appeared in person in the proceedings. The estate of the deceased 3 The only asset in the estate appears to be a half share in the matrimonial home. That has recently been valued by the plaintiff's valuer at $175,000 and by the defendant's valuer at $210,000. There was no cross examination of the valuers, quite properly given the size of the estate, and accordingly, a half share is worth between $87,500 and $105,000. The precise amount is not critical to a resolution of the matter. There are debts in the estate in respect of the funeral and masonry in the sum of $12,300. The parties have obviously incurred costs in the proceedings. The plaintiff's are $19,462.50 and the second defendants are $13,666. Family history 4 The plaintiff was born in Greece on 6 August 1913 and is 90 years of age. He first married in 1930 when he was 17 years to Germania Papadopoulos (not the deceased but a person of the same name). There were four children of that marriage, three of whom died without issue and one of whom came to Australia and died aged 52 years. The first wife of the deceased died in 1940. 5 The plaintiff's son, Adreas Papadopoulos, married and had three children they being the three beneficiaries who take a one third share of the estate between them. 6 The plaintiff met the deceased and they were married in 1953 when the plaintiff was 40 years of age. The deceased was at that time a widow and she had two daughters by her first marriage they being Maria who died in 1999 and the second defendant Irene Soklaridis who is now aged 60 years of age. 7 Maria and Irene immigrated to Australia but Maria returned to Greece and died there in 1999. 8 The deceased and the plaintiff bought their home at 12 Piper Street, Argenton in 1972 as joint tenants. They lived there for their married life, which, according to the plaintiff, was a happy marriage of some 44 years. The deceased apparently did not work but maintained the home. 9 There is evidence of only one disagreement between the deceased and the plaintiff and that related to their wills and the ownership of the home. In 1980 there was an argument between them as to whether the deceased should leave her share of the house to her family or as the plaintiff wanted to his family. Apparently the deceased obtained some legal advice and this led to a severing of the joint tenancy in 1983 so that the home could be held as tenants in common. This enabled the deceased to leave her share as she did. The second defendant submitted that the court should respect this decision of the deceased and the plaintiff. Extension of time 10 The summons in this matter was filed on 19 November 2002 and, accordingly, is out of time. Although the first defendant consents to an extension of time the second defendant does not consent. It is thus 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 that 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." 11 In several cases Mr Justice Young has 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? 12 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 in respect of 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). 13 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."