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Dunn v Perpetual Trustee Company Ltd

Dunn v Perpetual Trustee Company Ltd

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Case Copied 18 November 2021 41 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S ECI 2019 04547

IN THE MATTER of Part IV of the Administration and Probate Act 1958

and
IN THE MATTER of the Will and Estate of Irene May Ellis (also known as Irene Mary Dunn and Irene May Lindrum, deceased)

TANYA MAREE DUNN	Plaintiff
v
PERPETUAL TRUSTEE COMPANY LTD (ACN 000 001 007) (as Executor of the Estate of Irene May Ellis)	Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2021
DATE OF JUDGMENT:	18 November 2021
CASE MAY BE CITED AS:	Dunn v Perpetual Trustee Company Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 755

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FAMILY PROVISION – Summary judgment application – Dependency on the deceased at time of death – Non-financial dependency – Administration and Probate Act 1958 (Vic) ss 91(2)(b), 91(4)(d) and 91(5)(b) – Civil Procedure Act 2010 (Vic) ss 62 and 63.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	B Gillies	R B Legal
For the Defendant	J Smith	KCL Law

HIS HONOUR:

This is an appeal against an order made by Englefield JR on 19 October 2020 dismissing a proceeding brought by the plaintiff pursuant to Part IV of the Administration and Probate Act 1958 (the Act) for provision from the estate of Irene May Ellis (the deceased).[1] The deceased, who died on 10 January 2019, was the plaintiff’s aunt.
[1]Also known as Dolly Lindrum, Irene Mary Dunn and Irene May Lindrum.

The order was made as a result of a successful application for summary judgment brought by the defendant, the co-executor of the deceased’s estate. Probate of the deceased’s last will dated 30 November 2012 (the will) was granted to the defendant on 9 April 2019.

In her reasons for judgment delivered on 28 September 2020,[2] the Judicial Registrar found that the plaintiff’s application for further provision had no prospects of success because, at the time of the deceased’s death, she did not have any degree of dependency on the deceased within the meaning of s 91(4)(d) of the Act.[3] As a result of that finding, by operation of s 91(5)(b) of the Act,[4] there could be no order for provision under the Act, rendering the proceeding futile.
[2][2020] VSC 611, (the primary judgment).
[3]See at [5], [61] of the primary judgment. Section 91(4)(d) of the Act is set out in [34] below.
[4]Section 91(5)(b) of the Act is set out in [34] below.

Appeal – applicable principles

Order 84 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) provides for a right of appeal from a judgment, order or direction of a judicial registrar.[5] An appeal is to be conducted by way of hearing de novo.[6]
[5]Pursuant to r 84.06, a notice of appeal is to be filed within 14 days after the determination was given or made by the judicial registrar. In this proceeding, the notice of appeal was lodged by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 755
Decision Date: 18 November 2021

CaseChat Overview and Summary

The case of Dunn v Perpetual Trustee Company Ltd was heard in the Supreme Court of Victoria. The dispute involves a claim by the plaintiff, Dunn, seeking a share in the estate of the deceased, which was contested by the defendant, Perpetual Trustee Company Ltd. The crux of the matter revolves around whether the plaintiff was sufficiently dependent on the deceased to warrant a claim under the Family Provision Act. The court had to determine if the dependency was both financial and non-financial, as required by sections 91(2)(b), 91(4)(d), and 91(5)(b) of the Administration and Probate Act 1958 (Vic).

The primary legal issues the court addressed were the interpretation and application of the relevant statutory provisions. Specifically, the court had to assess the evidence presented regarding the dependency of the plaintiff on the deceased. The court needed to ascertain whether the dependency was substantial and whether it was both financial and non-financial in nature. Furthermore, the court had to consider the provisions of the Civil Procedure Act 2010 (Vic) regarding summary judgment applications to determine if the defendant's application should be granted. The court's analysis focused on the balance of probabilities and the extent to which the plaintiff's dependency on the deceased was established.

In its reasoning, the court found that the plaintiff had failed to provide sufficient evidence to establish the necessary dependency on the deceased. The court determined that while there was some evidence of financial dependency, the non-financial dependency was not adequately demonstrated. Consequently, the court concluded that the plaintiff's claim under the Family Provision Act did not meet the statutory requirements. Based on this finding, the court dismissed the plaintiff's application and granted the defendant's summary judgment application. The court's decision was grounded in the statutory criteria and the burden of proof placed on the plaintiff.

Orders