Marshall v Public Trustee [2006] NSWSC 402

New South Wales Supreme Court

CITATION : Marshall v Public Trustee [2006] NSWSC 402 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 4 May 2006

JUDGMENT DATE : 8 May 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE : 05/08/2006

DECISION : Paragraph 54

CATCHWORDS : Family Provision. Application by two step-sons. Deceased died intestate and estate passed to siblings whom the deceased had not seen for over 50 years. Provision ordered for step-sons with a protective trust in respect of one plaintiff.

PARTIES : Peter Marshall v Public Trustee Victor Marshall v Public Trustee

FILE NUMBER(S) : SC 2709 of 2005; 1677 of 2006

COUNSEL : Mr I.E. Davidson for Victor Marshall Mr M. Gorrick for Public Trustee

SOLICITORS : Elrington Boardman Allport for Victor Marshall Anthony Lentini for Public Trustee

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

ASSOCIATE JUSTICE MACREADY

MONDAY 8 MAY 2006

2709/05 - PETER MARSHALL v THE PUBLIC TRUSTEE - ESTATE OF IWAN ATAMANJUK AKA JOHN MARSHALL

1677/06 - VICTOR ATAMANJUK MARSHALL v PUBLIC TRUSTEE - ESTATE OF IWAN ATAMANJUK AKA JOHN MARSHALL

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Iwan Atamanjuk Marshall, otherwise known as John Marshall, who died on 28 November 2003 aged 76 years. He was survived by his two stepsons and some siblings and their children. THE WILL OF THE DECEASED 2 The deceased did not make a will and he died intestate. Until shortly before this hearing began it was thought that the estate would pass to the Crown as bona vacentia, however, in the weeks before the hearing it became apparent that there were indeed siblings surviving of the deceased. 3 The deceased was the son of Danilo and Aleksandra, who were married on 28 September 1914 in the Ukraine. There was apparently four children of that union: Iwan, the deceased, who was born in 1927, and who has now died; there was Olga Danilovna Atamanjuk, who was born on 5 July 1930, and died on 17 November 1973 in the Ukraine. She was married and left a son, Nikolaj Vasiljevich Atamanjuk, born on 19 November 1954. The third sibling was Fedor Danilovich Atamanjuk born 3 October 1935, and the fourth sibling, Vasilij Danilovich Atamanjuk was born on 15 August 1939. 4 The assets in the estate have now been reduced to cash, and amount to $347,515.24. The defendant's costs and also fees that are payable to the defendant add up to a sum of $38,200; Mr Peter Marshall, one of the stepsons, who appears for himself and does not have solicitors; Victor appears by solicitors and counsel and fees of $37,721 have been incurred. These will leave a net estate of something in the order of $271,594. The two proceedings have been heard together and I have ordered that evidence in one will be evidence in the other. FAMILY HISTORY 5 The deceased was born in the Ukraine in 1927. In 1944 he was taken to Germany as a prisoner of war. Victor was born in Germany on 29 October 1946, the father of whom was not known. In 1948 the deceased arrived in Australia. In 1949 Victor and his mother arrived in Australia and stayed at the Bonegilla camp in Victoria. After a short stay, they moved to Woodside, South Australia. 6 In 1952 Victor and his mother went to Clare in South Australia where his mother worked as a cook. In 1953 Victor was placed in the Mount Barker Salvation Army Boys Home as his mother had difficulties supporting him. His mother returned to Adelaide in 1954 and once again Victor was placed in a boys home at that stage. In 1956 his mother married Stefan Suba. Both the mother and Victor went to live with Stefan Suba in Croydon Park in Adelaide. 7 On 20 July 1956 Peter was born and Stefan Suba was Peter's father. In 1958 Peter and Victor and their mother moved to Mount Gambier in South Australia. After the parents split up the father Stefan abducted Peter when he was about two and for some years Peter did not live with his mother. 8 He eventually joined his mother when she was living in O'Connor in the ACT. In the early sixties Victor and his mother went to Goulburn. Victor was once again placed in a boys' home while his mother nursed in the Kenmore Mental Hospital and lived in the nurses' quarters. By 1963/64, Victor left school and got his first job. The family moved to Queanbeyan and lived in a boarding house and he obtained employment at Fairways Engineering. 9 They moved within Queanbeyan and his mother was then working in the Queanbeyan Base Hospital. She then met the deceased, who was known as John Marshall, and Victor was introduced to him. It was in 1964 that Victor and his mother commenced to live with John Marshall at 2 Scrivener Street, O'Connor. They lived in a de facto relationship for some years. Peter also moved in there in 1966. 10 It was in this year that Victor had a serious car accident and he was looked after by his mother and John Marshall, the deceased, while he recuperated. On 20 December 1966 the mother and the deceased married. In 1967 Peter changed his surname to Marshall. Victor married in 1968 and had children. He, in fact, named one of his sons after the deceased, John Marshall. 11 He moved out from home in 1971 and in 1973 took up bricklaying. In 1974 Victor spent quite some time off work helping the deceased build a property at 44 Munro Road. They used bricks that Victor was able to obtain and six months was taken up in this project. Apparently Victor had to return to work somewhat the poorer. In due course, in the eighties, Victor separated and started another de facto relationship. 12 The deceased died on 28 November 2003. In November 2005 Victor's de facto relationship with Carol Keyte ended and he rents from her the house that is owned by his former de facto partner. In January 2006 the mother, Olga Marshall, died. It was on 7 February 2006 that Victor first received a letter from the Public Trustee regarding the claim that Peter had brought and he saw a solicitor on 15 February 2006. 13 The summons for Peter's claim was filed within time, but Victor's was filed on 2 March 2006 and was out of time. As I have said, because the application is out of time, it is necessary for the Court to consider section 15 of the Family Provision Act, which allows an application to be made notwithstanding that 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." 14 His Honour Young J in several cases has dealt with the principles governing application to extend time under this Act. In Massie v Laundy (unreported NSWSC, 7 February 1986) he indicated that when looking at 'sufficient cause' under 16(3) of the Act the factors which one looks at include the following:-