Avery v Manno

Avery, as the executrix of the estate of the deceased, brought proceedings against Manno seeking judicial advice on certain issues concerning the estate, including the effect of land transfers and a statutory declaration. Manno applied for summary judgment under rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015, arguing that Avery had no real prospect of success. The court had to determine whether the plaintiff had a viable chance of succeeding in her application for judicial advice and if the proceeding constituted an abuse of process.

The court considered whether the proceeding was susceptible to summary dismissal or if it should be stayed or dismissed as an abuse of process. It assessed the precedents from Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd and Mandie v Memart Nominees Pty Ltd, which established criteria for summary judgment in judicial advice cases. The court also evaluated the nature of the application for judicial advice by an executor who was also the principal beneficiary of the estate, referencing Williams v Spautz and Batistatos v Roads and Traffic Authority.

The court found that Avery had no real prospect of success in her application for judicial advice, given the clear legal positions on the matters in question. Additionally, the court determined that the proceeding was not an abuse of process. It dismissed Manno's application for summary judgment and denied the application to stay or dismiss the proceeding as an abuse of process. The court held that the proceeding was not an abuse of process, and therefore, the application was dismissed in its entirety.