Vasconelos v Bonetig [2011] NSWSC 1029

Supreme Court New South Wales

Medium Neutral Citation: Vasconelos v Bonetig [2011] NSWSC 1029 Hearing dates: Friday, 19 August 2011 Decision date: 19 August 2011 Jurisdiction: Equity Division Before: White J Decision: Order that the summons be dismissed with costs. Catchwords: SUCCESSION - family provision - claim by daughter of deceased - estate fully distributed to defendant - application under Family Provision Act, s 16 for extension of time to apply for provision out of estate - ascertaining whether there is sufficient cause for application being made out of time - sufficient cause not established Legislation Cited: Succession Act 2006 Family Provision Act 1982 Wills, Probate and Administration Act 1898 Cases Cited: De Winter v Johnstone (New South Wales Court of Appeal, 23 August 1995, unreported, BC9505226) Burton v Moss [2010] NSWSC 163 Campbell v Chabert-McKay [2010] NSWSC 859 John v John [2010] NSWSC 937 Popovski v Kenjar [2011] NSWSC 731 Category: Principal judgment Parties: Elizabeth Vasconelas (Plaintiff) Erminio Aldo Bonetig (Defendant) Representation: J Wilson (Plaintiff) J Loxton (Defendant) Hennikers Solicitors (Plaintiff) Bussoletti Lawyers (Defendant) File Number(s): 2011/109667

Judgment 1HIS HONOUR : By her summons, the plaintiff claims an order pursuant to s 59 of the Succession Act 2006 that provision be made for her maintenance, education and advancement in life out of the estate, or notional estate, of Aida Sabaz Bonetig, late of Vermont Road, Warrawong. She also seeks an order that the time for making the application be extended up to and including the time of filing the summons. 2The deceased died on 14 December 2001. The summons was filed on 31 March 2011. Although the summons seeks an order under s 59 of the Succession Act , that Act does not apply. The application has been treated as an application for an order for provision pursuant to s 7 of the Family Provision Act 1982. 3Section 16(2) of the Family Provision Act provides: " 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. " 4The prescribed period was 18 months after the death of the deceased. Subsection (3) provides: " (3) The Court may not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the end of the prescribed period unless: ... (b) sufficient cause is shown for the application not having been made within that period. " 5On 2 August 2011 the Registrar listed for hearing the plaintiff's claim in paragraph 2 of the summons for an order extending the time for the making of the application. That is an unusual course. In De Winter v Johnstone (New South Wales Court of Appeal, 23 August 1995, unreported, BC9505226) Powell JA said that an application for an extension of time was invariably dealt with at the time of the application for substantive relief. This is an exception to the usual course, but one that is warranted in the circumstances. 6The deceased left a will dated 28 November 1994. She appointed her son Erminio Aldo Bonetig as her executor and left him the whole of her estate absolutely. The only asset of the estate, described in the Inventory of Property, was the property in Vermont Road, Warrawong. In the application for probate its estimated value was stated to be $200,000. 7The plaintiff is the daughter of the deceased and the sister of the defendant executor. 8On 26 March 2002 the defendant lodged a transmission application for registration as executor. It has remained registered in his name since that time. 9The plaintiff is currently 56 years of age. There is no doubt that she is an eligible person for the purpose of making a claim for provision. 10In her affidavit in support of the summons she deposed that about three months after her mother's death she had a discussion with the defendant, in which he said words to the effect, " If you are ever left by yourself and on your own I will help you ". 11She deposed that she did not know how much her mother had in the bank, but was aware that she had some furniture, and it is clear that she was also aware that her mother owned the house in Warrawong. 12She deposed that about three months later the defendant told her that he would never sell that house and that, based on those conversations, she believed that the defendant would give her something, even if it was only money. She said she was not too concerned that she received nothing over a period of three years after her mother's death as she knew that the house was still in the family and owned by her brother. She deposed that while she saw her brother on a number of occasions, he never spoke to her about the assets of the estate, apart from the conversations referred to above. 13The plaintiff deposed that in May 2005 she was told by a friend that the house at Warrawong had been put up for sale. This upset her. She consulted a solicitor, a Mr Henniker on or about 9 May 2005 (in her affidavit she gave this date of 9 May 2003, but that appears to be a typographical error and the correct date is 9 May 2005). 14She deposed that at that time she received legal advice and was told that there was an 18 months' limitation period for commencing a claim against the estate. She consulted a barrister, Mr Wilson. Both her solicitor and barrister advised that she should lodge an application in this Court as quickly as possible because she was out of time, bearing in mind that her mother had died 14 December 2001. She did not take that advice. Her reasons for not doing so are said to be that she was very upset about personal matters with her brother, that being of Italian descent it was a difficult thing, having regard to her culture, for her to sue someone as close as a brother, and that she found the idea of going to court to talk about family matters too invasive and intimidating. She deposed that she still thought that her brother would look after her in some way by helping her and her husband to purchase a property for them to live in. 15So far as the evidence reveals, all that has changed is that, six years later, she now accepts the fact that her brother will probably not help her as he has not helped her in the last nine years. 16It is clear from the structure of s 16(2) and (3) that an applicant for extension of time was must show " sufficient cause " for the application not having been made within the prescribed period. If, but only if, such sufficient cause is shown, then the court has a discretion, having regard to all of the circumstances of the case, to extend the time for the making of an application. The expression " sufficient cause " means sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period. If there is such a sufficient explanation then other factors relevant to the exercise of discretion under s 16(2), include any prejudice to the beneficiaries, whether the plaintiff has been guilty of unconscionable conduct by lulling the beneficiaries into a false sense of security, and the strength of the plaintiff's case ( Burton v Moss [2010] NSWSC 163 at [32]-[38] and [51]-[58]; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47]; John v John [2010] NSWSC 937 at [37]-[51]; and Popovski v Kenjar [2011] NSWSC 731 at [84]-[92] and the cases there cited). 17Mr Wilson of counsel who appeared for the plaintiff, has ably submitted all that could be put in favour of making orders under s 16. He relies on two matters in particular as providing a sufficient explanation for the plaintiff's delay in making the claim within the prescribed period. First, the plaintiff's evidence of her conversations with her brother about three months and six months after the deceased's death referred to earlier in these reasons, from which, according to the plaintiff, she assumed that her brother would provide financial assistance for her in the future. The second matter to which counsel referred was that the estate was said to have been distributed to the defendant by the registration of the transmission application without, so far as appears, any notice having been published pursuant to s 92 of the Wills, Probate and Administration Act 1898 of his intention to distribute the estate. 18As to the first matter, the only evidence the plaintiff gave of the defendant's having represented that he would provide financial assistance for her in the future was in the conversation referred to earlier where the defendant is said to have stated that if the plaintiff were ever left by herself and was on her own, he would help her. The plaintiff has not been left by herself. She remains married. That assurance, if it can be so characterised, would provide no reason for the plaintiff not to make a claim under the Family Provision Act if there were proper grounds for such a claim. It was not an assurance that the defendant would do anything specific. It was not a representation that he would transfer to the plaintiff any part of the estate, or provide assistance in the purchase of a house. 19As to the second matter, there is no evidence that publication of a notice of intended distribution of the estate would have had any effect on the plaintiff had she become aware of such a notice. She knew she had received nothing from the estate. She must have known that only the defendant had received the estate. Yet she did nothing until 2005 to obtain legal advice as to any right she might have in respect of the estate. Moreover, after the plaintiff received legal advice and was told that she should institute proceedings promptly, she did not take that advice. I do not think that publication of a notice under s 92 of the Wills, Probate and Administration Act has any relevance to the suggested explanation for the plaintiff's not having made an application within the prescribed period. 20For these reasons I do not think that other factors relevant to the fact exercise of a discretion under s 16(2) come into play. But if they do, I do not consider that the discretion should be exercised in the plaintiff's favour. My principal reason for that is that the plaintiff received legal advice in 2005, but chose not to follow it. Her explanation for that decision in a sense is understandable. It is a difficult thing for anyone of whatever cultural background to sue a sibling, and all such claims under the Family Provision Act or the Succession Act can be regarded as invasive or an intimidating intrusion into family matters. But the time stipulations for commencing proceedings under the Act are there for a good purpose. The length of time that has now elapsed since the deceased's death would inevitably affect the quality of evidence a party might wish to give in the proceedings in relation to family matters occurring prior to the deceased's death. Memories fade over time. The policy behind s 16(2) would be put at nought if an applicant could decide at his or own choosing how long he or she should wait before plucking up the strength to institute proceedings. 21It is true that there has been no other dealing with the estate asset. It remains registered in the name of the defendant. But the absence of one form of prejudice such as might arise had there been a range of beneficiaries and had assets been distributed among them, or had the asset been sold, does not mean that there is no prejudice at all. As I have said, the very lapse of time creates prejudice in any fact-finding exercise. 22I am prepared to assume that if leave were given, the plaintiff's case would not be bound to fail. There would be a real question as to whether or not the land has been distributed, and if so, whether or not, under s 28(5) of the Family Provision Act , the plaintiff would need to establish special circumstances before an order could be made designating it as a notional estate. I assume that those questions could be answered favourably to the plaintiff. Nonetheless, an extension of time when there has been such a long period since the deceased died, and such a long period since the plaintiff knew of her rights, would not be justified. 23For these reasons I refuse the claim in order 2 of the summons. It follows that the summons must be dismissed. 24I order that the summons be dismissed with costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 September 2011