A son’s claim under the ACT Family Provision Act 1969 sought a life interest in property of his deceased mother, which had been left to his sister, her daughter. He applied to adjourn the 30 March 2020 hearing for reasons to do with COVID-19.
The background to the dispute is complicated and the subject of much earlier litigation. The son had lived in the home with his mother from 2013 until shortly before her death in 2018. He suffered from leukaemia. The will gave each of the deceased’s grandchildren (all of whom were the son’s children) a sum of $10,000 with the remainder to the daughter, the executor. ‘That may be because the deceased regarded the plaintiff [son] as financially reckless’.[1] He was in fact bankrupt, in unusual circumstances,[2] and the Official Trustee in Bankruptcy was also a defendant.
The adjournment application
The respondent executor opposed the son’s application to adjourn because she was anxious to carry out the terms of the will and to sell the property. She suggested a video-link hearing.
While the Judge was sympathetic to this, he said litigants have a right to appear in court to not only give evidence but also to observe the running of their case and provide instructions.
And while this could normally be achieved by video,
‘there is an important distinction with a final hearing’.
In any event, were the hearing to commence on 30 March, the Judge said that
‘[i]f the property were to be sold before the current crisis runs its course, I doubt very much of its true value will be obtained’.
A sale now would also mean the son would have to vacate the property and this would result in
‘the added risk [that] exposure to the virus may well have a particularly tragic result’.
In what the Judge described as ‘an unprecedented and unpredictable atmosphere’ the potential consequences of refusing the adjournment outweighed any prejudice arising from the delayed sale of the property.
COVID-19 issues
The parties and their lawyers listed a variety of illnesses which suggested they were susceptible to the COVID-19 virus.
The applicant’s leukaemia meant he had to self-isolate.
As to his lawyers, the Judge was told that his principal solicitor was 59 years of age and suffered from asthma, and her assistant solicitor was 56.
‘Apparently of equal significance’, their counsel was ‘obese and suffer[ed] from asthma’.
Then, the executor’s senior counsel was medically advised not to travel to the hearing by air from her home in Queensland and the case would be conducted by junior counsel.
The Judge said that his decision to adjourn was made
‘without reference to the personal attributes of the applicant’s legal team’.
See Talent v Official Trustee in Bankruptcy & Anor (No 5) [2020] ACTSC 64.
[1] Talent v Official Trustee in Bankruptcy & Anor (No 4) [2019] ACTSC 372 and other decisions
[2] Talent v Official Trustee in Bankruptcy [2019] ACTSC 274
