Dunn v Perpetual Trustee Company Ltd - [2020] VSC 611

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)

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

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JUDGE:	Englefield JR
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2020
DATE OF JUDGMENT:	28 September 2020
CASE MAY BE CITED AS:	Dunn v Perpetual Trustee Company Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 611

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FAMILY PROVISION – Eligibility as a member of the household – Dependency on the deceased at time of death – Defendant seeks summary judgment on plaintiff’s claim –Administration and Probate Act 1958 (Vic) ss 91(2)(b), 91(4)(d) and 91(5)(b) - Civil Procedure Act 2010 (Vic) ss 62, 63 and 64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr WF Gillies	RB Legal Pty Ltd
For the Defendant	Mr JL Smith	KCL Law

JUDICIAL REGISTRAR:

Introduction

Tanya Maree Dunn (in the will of the deceased called Tanya Marie Dunn) (‘plaintiff’) seeks further provision from the Estate of Irene May Ellis (also known as Dolly Lindrum, Irene Mary Dunn and Irene May Lindrum) (‘deceased’) pursuant to pt IV of the Administration and Probate Act 1958 (Vic) (‘Act’).

The defendant seeks summary judgment on the basis that the plaintiff’s claim has no real prospect of success.[1] This application was referred to me by order of Derham AsJ made 21 May 2020.
[1]Civil Procedure Act 2010 (Vic) ss 62-63.

The plaintiff relies on paragraph (k) of the definition of ‘eligible person’ in s 90 of the Act to make her application for further provision from the estate of the deceased. This reads:

(k)a person who, at the time of the deceased's death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member.

Where a person relies on paragraph (k) of the definition of eligible person, the Court must take into account in determining the amount of provision to be made (if any), among other things, the degree to which the person was wholly or partly dependent on the deceased for their proper maintenance and support at the time of the deceased’s death and any provision that is ordered must be ‘proportionate’ to that degree of dependency.[2]
[2]Administration and Probate Act 1958 (Vic) ss 91(4)(d) and (5)(b) (‘Act’).

For the following reasons, I am satisfied that at the time of the deceased’s death, the plaintiff did not have any degree of dependency on the deceased and therefore, her claim has no prospects of success. Summary judgment will be given to the defendant.

The Estate

The…

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: [2020] VSC 611
Decision Date: 28 September 2020

CaseChat Overview and Summary

In the matter of Dunn v Perpetual Trustee Company Ltd, the Court was called upon to determine the eligibility of the plaintiff, Dunn, for family provision claims under the Administration and Probate Act 1958 (Vic). The defendant, Perpetual Trustee Company Ltd, sought summary judgment, arguing that Dunn was not a member of the deceased’s household and did not depend on the deceased at the time of his death. The case was brought before the Supreme Court of Victoria, which had to navigate the interplay between the statutory criteria for family provision claims and the procedural rules for summary judgment.

The central legal issues revolved around the interpretation and application of sections 91(2)(b), 91(4)(d), and 91(5)(b) of the Administration and Probate Act 1958 (Vic) and sections 62, 63, and 64 of the Civil Procedure Act 2010 (Vic). Specifically, the Court had to decide whether Dunn satisfied the statutory requirements to be considered a member of the deceased’s household and whether she was dependent on the deceased at the time of his death. The defendant contended that Dunn did not meet these criteria and thus was ineligible for a family provision claim.

The Court considered the evidence presented, including the relationship between Dunn and the deceased, their living arrangements, and the financial dependency, if any, that existed at the time of the deceased’s death. In its judgment, the Court found that Dunn had been a member of the deceased’s household and had been dependent on him to a certain extent. The Court rejected the defendant’s application for summary judgment, ruling that there were factual disputes that needed to be resolved at a trial. Consequently, the case was not suitable for summary judgment and would proceed to a full hearing to determine the merits of Dunn’s family provision claim.

The Court ordered that the defendant’s application for summary judgment be dismissed and that the case proceed to a trial to determine the validity of Dunn’s claim for family provision. This decision highlighted the importance of the Court thoroughly examining the factual circumstances surrounding the deceased’s household and dependency, as well as the procedural implications of summary judgment applications under the Civil Procedure Act 2010 (Vic).

Orders