Illman v Sterrey

Case [2023] SASC 50

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

ILLMAN v STERREY & ORS

[2023] SASC 50

Judgment of Judge Dart a Master of the Supreme Court  

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - GENERALLY

SUCCESSION - FAMILY PROVISION - CRITERIA FOR DETERMINING APPLICATION - GENERALLY - CIRCUMSTANCES TO BE CONSIDERED

Application for provision - applicant is a sibling of the deceased - question of standing of sibling - applicant needs to establish that he cared for or contributed to the maintenance of the deceased - he also needs to establish that he has been left without adequate provision for his maintenance, education or advancement in life - second to fifth respondents applied for summary judgment - question of which rule applies - UCR 143 and UCR 144 may apply - application only pursuant to UCR 144 - that rule does not apply to an action commenced by originating application - court may order otherwise - appropriate to order otherwise - applicant has failed to satisfy the jurisdictional issues - respondents entitled to summary judgment.

Held:

1. Court orders otherwise and permits UCR 144 to apply to this action.

2. The second to fifth respondents are entitled to summary judgment.

Inheritance (Family Provision) Act 1972 (SA) s 6, s 7; Testator's Family Maintenance Act 1918; Uniform Civil Rules 2020 (SA) rr 1.5, 143, 144; Federal Court of Australia Act 1976 (Cth), referred to.
Singer v Berghouse (No 2) (1994) 181 CLR 201; Worladge & Anor v Doddridge & Ors (1957) 97 CLR 1; Bowyer v Wood (2007) 99 SASR 190; Coates v National Trustees Executors and Agency Company Limited & Anor (1956) 95 CLR 494; Vigolo v Bostin & Ors (2005) 221 CLR 191; Re Allen (deceased) [1922] NZLR 218; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Tiburzi v Butler [2017] SASCFC 89; Kozlowski v Kozlowski [2013] SASCFC 112; Hamilton v Roche & Anor [2022] SASC 103; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors [2020] SASC 161; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; Columbus v Efstathis & Ors [2019] SASC 149, considered.

ILLMAN v STERREY & ORS
[2023] SASC 50

  1. This is an application for provision made pursuant to the Inheritance (Family Provision) Act 1972. The second to fifth respondents have applied for summary judgment. They assert that there is no reasonable basis for the claim. The respondents are entitled to a summary dismissal of the action.

    Background matters

  2. This matter involves the estate of the late Lisa-Jane Holland (the deceased) who died on 11 May 2021. The deceased left no spouse or children. She left a will made on 7 May 2021. A grant…

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Illman v Sterrey [2023] SASC 50
Case
[2023] SASC 50
Decision Date

CaseChat Overview and Summary

In the matter of Illman v Sterrey, the applicant, a sibling of the deceased, sought an order that provision be made for him from the estate of his late sister, Lisa-Jane Holland. The deceased, who died on 11 May 2021, left a will that made specific bequests, with the majority of her estate being left to her cousin and two friends. The applicant filed an affidavit detailing his financial situation, which included an annual income of $200,000 plus superannuation, rental income from three properties, and school fees for his children. The respondents, who are the deceased’s cousin and friends named in the will, applied for summary judgment, asserting that there was no reasonable basis for the applicant's claim.

The legal issues before the court were whether the applicant was an eligible claimant under the Inheritance (Family Provision) Act 1972 and whether he had demonstrated that he had been left without adequate provision for his proper maintenance, education, and advancement in life. The court considered the distinction between summary judgment and summary dismissal, ultimately concluding that the application should proceed under the appropriate rule for summary dismissal. The applicant argued that the application should have been made under UCR 143 rather than UCR 144, but the court found no error in the application under UCR 144.

The court held that the applicant was not an eligible claimant as he had not shown that he had cared for or contributed to the maintenance of the deceased in a manner beyond ordinary sibling conduct. The court further found that even if the applicant was an eligible claimant, he had not established that the deceased had a moral duty to make provision for him. The court reasoned that the relationship between siblings does not inherently impose a moral duty to provide for one another in testamentary dispositions, especially when the sibling is financially independent, as was the case with the applicant. Therefore, the court granted the respondents' application for summary judgment, dismissing the applicant's claim.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for provision made pursuant to the Inheritance (Family Provision) Act 1972. The second to fifth respondents have applied for summary judgment. They assert that there is no reasonable basis for the claim. The respondents are entitled to a summary dismissal of the action. Background matters This matter involves the estate of the late Lisa-Jane Holland (the deceased) who died on 11 May 2021. The deceased left no spouse or children. She left a will made on 7 May 2021. A grant of probate was made by the Court on 12 November 2021. The executor has filed an affidavit.[1] The statement of assets and liabilities disclosed a net estate of slightly less than $2,000,000. By the time of the argument the parties believed the value of the estate to be more like $2,600,000.[1] FDN 12. By her will the deceased made a number of specific bequests. The majority of the estate falls into residue which is shared between the deceased’s cousin and two of her friends. The applicant is the brother of the deceased. He seeks an order that provision be made for him. He filed an affidavit setting out his financial position. The relevant contents of the affidavit[2] are as follows:[2] FDN 5.40. My current financial position is as follows:40.1 I have an annual income of $200,000.00 plus superannuation.40.2 Samantha is employed by Dr Jones and Partners as a Sonographer with an annual income of $92,500.00.40.3 In addition to mine and Samantha’s employment incomes, we are also receiving rental income as follows:40.3.1105/8 Jeays St Bowen Hills Qld - $375.00 per week ($19,500.00 per annum);40.3.21/5 Santley Crescent, Kingswood NSW - $330.00 per week ($17,160.00 per annum); and40.3.364/120 Driftway Drive, Pemulwuy NSW - $450.00 per week ($23,400.00 per annum).41. School fees for my children are as follows:41.1 Charlotte at Loreto – Under $20,000.00 per annum; and41.2 Hamish at Prince Alfred College – Over $20,000.00 per annum.42.In addition to school fees, my monthly expenses total around $22,500.00 a month for expenses like bills, rates, registration and general living expenses.43.The joint matrimonial asset and liability position of myself and Samantha is as follows (Chris to provide update of financial position): I note that in 2022 the 90th percentile for income earners was approximately $142,000. That means that 90% of wage and salary earners receive less than that amount annually. The salary of the applicant is very much above average. Simply stated, the applicant enjoys a high salary and owns his own home albeit with a mortgage. He owns three investment properties which produce income, has $400,000 in the bank and has nearly half a million dollars in his superannuation account. The statutory provision The entitlement to make a claim is entirely statutory. The legislation originally had as its focus further provision for spouses and children.[3][3] Testator’s Family Maintenance Act 1918. The present Act is broader than the original Act and allows for siblings to claim. The relevant provision is:6—Persons entitled to claim under this Act The following persons are, in respect of the estate of a deceased person, entitled to claim the benefit of this Act: (a) the spouse of the deceased person; (b) a person who has been divorced from the deceased person; (ba) the domestic partner of the deceased person; (c) a child of the deceased person; (g) a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death; (h) a child of the child of the deceased person; (i) a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime; (j) a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondents seek summary judgment pursuant to the Rules. They say there is no reasonable basis for the applicant’s claim. The applicant says that the respondents have pursued an application pursuant to the wrong rule. He asserts that the application should have been commenced pursuant to UCR 143 which deals with summary dismissal rather than UCR 144 which deals with summary judgment. The applicant’s argument is based on the following:Part 4—Summary judgment144.1—Introduction Unless the Court otherwise orders, this Part applies only to proceedings by way of claim (including a cross claim). The starting point then is that UCR 144 does not apply to an action commenced by originating application. The UCR distinguishes between actions commenced by claim and those commenced by originating application. All claims for provision are commenced on originating application. The Court may by order allow a summary judgment application to be brought in a matter commenced by originating application. The applicant referred to the decision of Auxiliary Justice Bochner in Hamilton v Roche & Anor.[20] In that matter there was an application pursuant to both UCR 143 and UCR 144. The proceeding in that matter was commenced by originating application. Her Honour noted that UCR 144 did not apply and proceeded to deal with the matter pursuant to UCR 143. The rules overlap to a significant extent and her Honour made orders pursuant to UCR 143. There appears to have been no application for the Court to order otherwise. [20] [2022] SASC 103. In Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors[21] his Honour Justice Doyle considered the difference in the operation between UCR 143 and UCR 144:[22]The difference in focus between the two has implications for the use that may be made of evidence in the determination of the applications. In the case of a strike out application, the Court’s consideration of the nature and adequacy of the claim, as disclosed in the pleading itself, may require recourse to a document or documents referred to in the pleading (such as a contract) in order to make sense of the pleading. It may also require consideration of some evidence so as to enable the Court to understand the pleaded allegations in their proper context, and hence expose their inadequacy or their frivolous, vexatious or abusive character. However, it will not ordinarily require any consideration of evidence going to the underlying merits of the applicant’s claim, let alone making findings on that evidence.In the case of a dismissal application, on the other hand, there will often be greater scope for reliance upon evidence so as to make good the proposition that the applicant’s case itself is deficient in some respect, or is otherwise frivolous, vexatious or an abuse of process. That said, the nature of the exercise will nevertheless differ from that which is undertaken on a summary judgment application. While the difference is difficult to articulate, an application for summary dismissal is typically addressed more to the absence of any identifiable proper claim, whereas an application for summary judgment is typically addressed more to a particular defect in, or answer to, an otherwise properly articulated and disclosed case.The difference between strike out and dismissal applications also relates to, and explains, the difference in the consequences to which they lead. The former leads to an order that the relevant pleading (or part thereof) be struck out. However, as the conclusion justifying this order is one based upon a deficiency in the pleading, and not necessarily the case itself, the applicant is usually given an opportunity to replead. The latter, on the other hand, because it is predicated upon a defect in the applicant’s case (rather than merely the pleaded articulation of it), leads to an order that the action or proceeding itself be dismissed. Whilst such an order brings the relevant action or proceeding to an end, it does not ordinarily give rise to res judicata or otherwise prevent a fresh claim being brought in appropriate circumstances.While I have attempted to summarise what I see as the key features of, and differences between, summary judgment, summary dismissal and strike out applications, I accept that in practice the distinctions are often difficult to draw and observe, and there is, quite appropriately, scope for overlap and flexibility in their operation.[footnotes omitted][21] [2020] SASC 161.[22] [2020] SASC 161 at [67]-[70].

Ratio Decidendi

Legal Principle Established

The test to be applied is no reasonable basis. That is different to bound to fail. The question is still one of whether there is a sufficient foundation in the claim that is advanced to make it appropriate to allow it to proceed to trial. All cases note that caution is required in exercising the power to award summary judgment.Consideration The first question is whether the applicant is an eligible claimant. Without more, a sibling is not an eligible claimant. The additional requirement of having cared for or contributed to the maintenance of the deceased person must be established. I take what is said by the applicant in his affidavit at its highest. I am not satisfied that the applicant has established that he cared for or contributed to the maintenance of the deceased in the relevant sense. What the section requires is something beyond conduct that you would ordinarily expect in the relationship between two caring siblings. If that was not so, the additional words in the subsection would not be necessary. The matters the applicant deposes to in paragraph 51 of his affidavit do not go beyond conduct that would be expected between siblings. The affidavit details such things as sharing meals, collecting her from the airport and visiting with his children. There is also some discussion of mowing lawns and the like. That is not providing maintenance of the type referred to in the legislation. There is no suggestion of financial support. The applicant is not an eligible applicant. Even if the applicant was an eligible applicant, that is only the first step in the claim. He would need to satisfy the Court that, by reason of the testamentary dispositions of his sister, he has been left without adequate provision for his proper maintenance, education and advancement in life. As mentioned above, the correct approach is what would a wise and just testator have thought it her moral duty to make if she had been aware of all of the circumstances. Did the applicant’s sister have a moral duty to make provision for her brother? It is relatively straightforward to identify the moral duty owed to a spouse or a child. Once the relationship is more remote than that, the position becomes much less clear. In Columbus v Efstathis & Ors[26] Stanley J was dealing with the position as between grandparent and grandchild. His Honour said:[27]In accordance with Bowditch, as a general rule a grandparent does not have a responsibility to make provision for a grandchild in his or her testamentary disposition. That obligation rests on the parent of the child. Nor is a grandchild normally regarded as a natural object of the deceased’s testamentary recognition. The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. While a moral obligation may be created in a particular case by reason of the care and affection provided by a grandchild to her grandparent, there is no evidence of that in this case.[26] [2019] SASC 149.[27] [2019] SASC 149 at [40].