Phillips v Hunt [2005] NSWSC 978

New South Wales Supreme Court

CITATION : Phillips v Hunt [2005] NSWSC 978

HEARING DATE(S) : 27/09/05

JUDGMENT DATE : 28 September 2005

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraph 45

CATCHWORDS : Family Provision. Application by a widow left a life interest in family home. Remainder interest to charities. Order for sale and legacy to plaintiff in lieu ofd life estate.

PARTIES : Eileen Veronica Phillips v John Richard Hunt

FILE NUMBER(S) : SC 2557/05

J. Drummond for plaintiff COUNSEL : M. Meek for defendant

Miller Noyce for plaintiff SOLICITORS : Carroll & O'Dea for defendant

LOWER COURT JURISDICTION :

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

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 28 SEPTEMBER 2005

2557/05 - EILEEN VERONICA PHILLIPS v JOHN RICHARD HUNT

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Leslie Joseph Phillips who died on 13 July 1991 aged seventy-five years. He was survived by his widow of thirty-two years, the plaintiff. They had no children. 2 The last will of the deceased was made on 25 July 1972. It gave a right of occupancy in their home to his wife for her life. The remainder of the interest in respect of the house was given to three charities. The first was the Trustees of the Sisters of Mercy (North Sydney) for the purposes of Our Lady's Home at Waitara. The second was to St Gabriel's School for Deaf Boys at Castle Hill conducted by the Christian Brothers. The third was to the Trustees of the Sisters of Charity for the purposes of the Sacred Heart Hospice at Darlinghurst. The residue of the estate was given to the plaintiff. 3 Apparently the first charity mentioned no longer operates and there may be some question of intestacy or some question as to what should happen to its entitlement. Assets 4 The deceased had a house at 18 Norfolk Avenue, Beverly Hills. Although at the date of death it was worth substantially less, the evidence shows its present value is $575,000. There was cash, furniture, a car and investments totalling about $124,000 odd, which, less costs, brought it down to approximately $120,000. The transfer to the plaintiff was under the residuary bequest in the will of the deceased. Family History 5 The plaintiff was born on 18 February 1916. She and the deceased married on 19 September 1959 and lived at 18 Norfolk Avenue, Beverly Hills. The deceased was a postman and at times he worked at the GPO. The plaintiff did not work and she was a homemaker. 6 It was on 25 July 1972 the deceased made his will in the manner in which I have described. He retired in 1979 and, as I have mentioned earlier, he died on 13 July 1991. He was then aged seventy-five years and they had had no children. 7 The plaintiff, of course, continued to reside in the house so there was no need for her to move out, she having been given a life estate, and she continued to meet all the expenses, rates and insurances, on the house. 8 On 13 January 1993 the eighteen month time limit under the Family Provision Act for making a claim expired. It was in September 1992 that probate was granted to the defendant solicitors who acted for the deceased. In due course the residuary estate was distributed. 9 In October 2003 the plaintiff had a fall at her home and she was transferred firstly to hospital and then to a nursing home where she still resides. She has not been allowed to return home because she needs twenty-four hour supervision and there is no one available to do it. Clearly she would love to do so and dislikes the lack of privacy and the other intrusions in the nursing home. 10 It was on 23 February 2005 the plaintiff saw a solicitor and learned of the rights she may have under the Family Provision Act. On 21 April 2005 the summons was filed some twelve plus years out of time. 11 Because the application is out of time it is necessary for the Court to consider s 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." 12 His Honour Young J in several cases has dealt with the principles governing applications to extend time under this Act. In Massie v Laundy (unreported, NSWSC, 7 February 1986) he indicated that when looking at "sufficient cause" under s 16(3) of the Act the factors which one looks at include the following: