[2012] NSWSC 349

Jordan v Calver

I dismiss the proceedings and order the plaintiff to pay the defendants' costs.

Catchwords

Family Provision. Application for summary dismissal. No funds in the estate which was expended on debts and costs. Proceedings in dismissed.

[1]
HIS HONOUR: This is the hearing of a notice of motion filed by the defendants on 30 May 2011 in which they seek that the summons be struck out.
[2]
The proceedings are a claim under the Family Provision Act 1982 in respect of the estate of the late Erling Harold Calver who died on 10 November 2008.
[3]
The plaintiff claims to be entitled to an order for provision on a number of grounds but unfortunately it has become apparent through the administration of the estate that the estate has no funds and nor is there any notional estate that may be designated. The estate has substantially been used in payment of debts in the estate and costs involved in its administration.
[4]
I have previously read an affidavit of Pamela Calver sworn 17 March 2001 dealing with the fact that there is no estate left.
[5]
The plaintiff has appeared on a previous occasion but did not appear on the last occasion. At the time she last appeared I explained the difficulty to her. She lives in Tasmania and it is not unexpected that she has not attended today. As I explained to her, her claim cannot succeed. On the last occasion she had a medical certificate and that is why the matter was recently adjourned to today. In the circumstances I note there is no appearance and I am satisfied that the plaintiff has been notified of the hearing today.
[6]
In the circumstances I dismiss the proceedings and order the plaintiff to pay the defendants' costs.