Neil v Nott [1994] HCA 23; (1994) 121 ALR 148; (1994) 68 ALJR 509 (1 June 1994)

HIGH COURT OF AUSTRALIA

PETER CHRISTISON NEIL v. JAMES HENRY NOTT AND ANOR
F.C. 94/025
Number of pages - 4
[1994] HCA 23; (1994) 121 ALR 148, (1994) 68 ALJR 509

HIGH COURT OF AUSTRALIA
BRENNAN, DEANE, TOOHEY, GAUDRON AND McHUGH JJ

CATCHWORDS

HEARING

CANBERRA, 6 May 1994
1:6:1994

ORDER

The appeal be allowed. No order as to costs.
Order of the Full Court of the Supreme Court of Victoria be set aside and in 1. leave to appeal to the Full Court from the order of Tadgell J be granted;

2. the appeal be allowed;
3. the order of Tadgell J be set aside and in lieu thereof the time for the

appellant to make an application for an order under s. 91 of the Administration and Probate Act 1958 (Vic.) be extended until 28 days after the date of this order.
4. No order as to costs.

DECISION

BRENNAN, DEANE, TOOHEY, GAUDRON AND McHUGH JJ. Mr Neil's wife died on 16 June 1991. By her will she appointed the respondents, Mr Nott and Mrs Coyne, as her executors. They obtained a grant of probate of her will on 27 November 1991. In support of the application for the grant Mr Nott swore an affidavit on 30 October 1991 verifying an inventory of the assets of the testatrix totalling an estimated $129,457. Later, applying for directions as to the distribution of the estate, Mr Nott swore an affidavit which revealed an estate of a somewhat larger size. This affidavit was sworn on 21 July 1992 but Mr Neil says it was not served on him until 16 September 1992. On 28 September 1992, Mr Neil applied on affidavit - an irregular mode of instituting the application, but the irregularity is immaterial - for an extension of time in which to make an application under s.91 of Pt IV of the Administration and Probate Act 1958 (Vic.). Section 91 provides for an application for proper maintenance and support out of a deceased estate to be made by a widower. The time prescribed for the making of applications by s.99 of the Act is within 6 months after the date of the grant of probate of the will, but the Supreme Court has jurisdiction to extend that time.

2. The statutory period for applying for maintenance and support out of Mrs Neil's estate had expired on 27 May 1992. Mr Neil's application for extension was thus made 4 months and one day out of time. In his affidavit sworn on 28 September 1992 Mr Neil advanced two reasons to excuse his delay in making the application, namely:

"(a) that the executors and trustees of the late wife's
estate failed to properly disclose the full assets
of that estate in the affidavit of James Henry Nott,
dated 31st. October 1991 thereby misleading me as to
believing that further provision for me could not be
realized, as the value of my late wife's estate was too
small to warrant any application from me;
(b) that it now appears from a further affidavit of James
Henry Nott sworn on the 21st July 1992 and only served
on me on the 16th. September 1992 that the net value of
my late wife's estate may be approximately double the
assets previously disclosed."

In a further affidavit sworn on 4 October 1992 he advanced a third reason:

"That I first became aware of my rights to make an
application under Part IV of the Administration and
Probate Act 1958 upon purchasing a copy of that Act on
Tuesday 22nd September 1992."

3. The application came before Tadgell J. on 5 October 1992. It is manifest that Mr Neil, who has been his own advocate in this litigation, did not direct his Honour's attention to the subject of the application but endeavoured to challenge the executors' assertions as to the assets and liabilities of the deceased's estate and to impugn the conduct of persons whom he believed to be responsible for denying him an interest in what had been the matrimonial home. He repeated complaints of that kind in his argument in this Court. In response to Mr Neil's complaints, his Honour said:

"Having heard what Mr. Neil has submitted, I regret to
say that in my opinion his application is misconceived.
What he appears to require is a determination, by way of
declaration or otherwise, of that of which his late wife's
estate consists, as to both assets and liabilities.
Principally, as I have followed his argument, he seeks
in effect to say that the estate includes the former
matrimonial home, to which he is partly entitled as a
co-proprietor, although the executors deny it. He also
seeks to say, as I gather it, that certain debts which he
owes are jointly owed by him and the estate, and that the
estate should contribute to their payment, although the
executors deny it. These matters are, in my opinion, not
appropriate for resolution in an application for provision
under Part 4 of the Administration and Probate Act."

His Honour was satisfied:

"that it is not appropriate that these matters be dealt with
in an application under Part 4 of the Administration and
Probate Act."

His Honour doubted Mr Neil's assertion that he was not aware of his rights under the Act until 22 September 1992. But that was not the ground on which his Honour refused Mr Neil's application. That factor was, as his Honour said:

"by the way, because, even if he had satisfied me that
he was unaware of his rights until last month, I am
nevertheless of opinion that the application should fail,
for the reasons I have indicated."

4. The Full Court of the Supreme Court refused Mr Neil's application for leave to appeal. Without giving full reasons their Honours mentioned what they saw as an inconsistency between his assertion that he did not know until September 1992 of his right to make an application under Pt IV of the Act and his assertion that he was misled as to the value of the estate when the executors set out a deficient inventory in their application for probate.

5. As the Full Court of the Supreme Court did not consider de novo the application before Tadgell J., the question before this Court is whether the reasons for judgment of Tadgell J. reveal an error of principle which vitiates his Honour's exercise of the discretion to extend time. It is not an easy question to answer, for Mr Neil's advocacy has often been directed to irrelevant issues, as the reasons of Tadgell J. reveal and as his argument in this Court confirms. A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. It has been so in this case. It is necessary to focus on the material placed before Tadgell J. and to ascertain whether, on that material, a refusal to extend time bespeaks an error of principle affecting the exercise of the discretion to extend time.

6. That material shows that Mr Neil is a solicitor but he has not practised since 1989. In an affidavit filed in the Family Court, his late wife described how he had lost interest in his affairs and had taken a job as a storeman. His mental health had deteriorated. (One of Mr Neil's affidavits disclosed that he had suffered a nervous breakdown in November 1988.) Mrs Neil deposed that Mr Neil had been contributing to the mortgage debt secured on the matrimonial home but was, in January 1991, earning insufficient money, as a cleaner, to pay school fees. He was allegedly burdened with debts. In an affidavit sworn on 28 September 1992, Mr Neil claimed that he was unemployed and "experiencing financial hardship". Since June 1992, he has been living on a property at Melton in a borrowed caravan.

7. Mr Nott's first affidavit did not show, but his second affidavit did show, that the estate includes a residential property - the matrimonial home - which was subject to mortgage. It had an estimated value of $140,000 "subject to an equity over half of its worth in favour of A.R. Devine Pty. Ltd. which is a trustee company administering a discretionary trust under which the Testatrix's family are beneficiaries and (Mr Neil) is the appointee". The second affidavit showed secured debts of $114,000 but Mr Nott, who was a director of A.R. Devine Pty. Ltd., deposed to the fact that $33,000 (part of the $114,000) lent by the State Bank of Victoria on the security of that property "is recognized to be that company's responsibility". The second affidavit also showed that Mrs Neil's estate includes "accrued employment benefits of approximately $23,000" although the first affidavit had disclosed only $5,700 as "superannuation salary entitlements". In an affidavit sworn on 4 October 1992, Mr Neil asserted that his wife's assets "were accumulated since our marriage" and that he was "being burdened by debts accumulated by my late wife and myself during our marriage". From the material exhibited to the several affidavits of Mr Neil and Mr Nott, it is clear that there was controversy between Mr Neil and the executors as to, inter alia, the beneficial ownership of the proceeds of a policy of insurance of the life of Mrs Neil which had been paid to the estate and which yielded $104,227.03. They were also in dispute over the estate's liability to pay one-half of a mortgage debt of $100,000 owing on the property at Melton which was owned by Mr and Mrs Neil as joint tenants.

8. Mrs Neil had excluded her husband from participation in her estate for reasons which she stated in her will:

"having considered our overall financial situation and my
paramount obligation to provide for my children I wish it
to be known that I consider my husband will be adequately
provided for by receiving the benefit of the property owned
by us jointly at 5 Minns Road, Melton."

9. In these circumstances, the effect of the evidence was that Mr Neil was, to his wife's knowledge, impoverished, ill, burdened with debt and with poor prospects of gainful employment; that he had contributed to the accumulation of some of the assets in her estate, notably the matrimonial home; and that he asserted a beneficial interest in that home and in the major cash asset, viz., the proceeds of the life policy. His exclusion from testamentary benefits was attributed to the wife's preferential concern for the children and his ownership of the property at Melton which was subject to a substantial debt. On these facts, which were not contested in the Supreme Court, it would require a substantial reason to refuse Mr Neil 4 months extension of time. Prima facie, his illness and financial state were sufficient to entitle him to a brief indulgence to allow consideration of his moral claim unless it appeared that the administration of the estate would be prejudiced by that extension of time. No prejudice was shown: the executors, perhaps to conserve the estate, did not appear in the Supreme Court to oppose Mr Neil's application.

10. In our view, although it is not possible to identify a particular error of principle, his Honour's exercise of discretion did miscarry. It seems that the misconceived advocacy by Mr Neil directed his Honour's attention away from the material considerations. Even if it was right to doubt Mr Neil's explanation for his delay in applying, the other factors to which we have referred required favourable consideration before taking the step of finally excluding him from possible participation in his wife's estate.

11. We would therefore allow the appeal, set aside the order of the Full Court and in lieu thereof grant leave to appeal to the Full Court from the order of Tadgell J., allow that appeal, set aside the order of Tadgell J. and extend the time for the appellant to make an application for an order under s.91 of the Act until 28 days after the making of this order. However unfortunate Mr Neil's condition of health may be, it seems that his misconceived advocacy has been the cause of the difficulties thus far. We would therefore make no order for costs.