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Lemmens v Davis

Lemmens v Davis

Case [2020] VSC 795 1 December 2020

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Standing

Dismissal for want of prosecution

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

ORIGINATING MOTION LIST

S CI 2012 03637

PATRICK SIMON LEMMENS	Plaintiff
v
JULIE DAVIS (who is sued as Executor of the Will of ANITA GERTRUDE STEINER, deceased)	First Defendant
NICOLE BROWN (who is sued as Executor of the Will of ANITA GERTRUDE STEINER, deceased)	Second Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2020
DATE OF JUDGMENT:	1 December 2020
CASE MAY BE CITED AS:	Lemmens v Davis & Anor
MEDIUM NEUTRAL CITATION:	[2020] VSC 795

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PRACTICE AND PROCEDURE — Dismissal for want of prosecution — Proceeding under Part IV of the Administration and Probate Act 1958 (Vic) for family provision from the estate of the deceased former partner of the plaintiff — Inordinate delay — Whether delay excusable — Whether defendants prejudiced by the delay — Whether the merits of the claim should be a factor in the application — Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863; Sullivan v Greyfriars Pty Ltd, [2015] VSCA 196.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Boaden	Clancy & Triado
For the Defendants	Mr S Pitt	Arnold Bloch Leibler

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background Facts............................................................................................................................... 1

Evidence............................................................................................................................................... 7

Applicable Law................................................................................................................................. 16

Want of prosecution principles................................................................................................. 16
Family provision principles....................................................................................................... 24

Submissions and Consideration................................................................................................... 27

Inordinate delay.......................................................................................................................... 27
Inexcusable delay........................................................................................................................ 28
Defendants’ submissions.................................................................................................. 28
Plaintiff’s submissions...................................................................................................... 30
Consideration..................................................................................................................... 30

Prejudice to the defendants....................................................................................................... 33
Defendants’ submissions.................................................................................................. 33
Plaintiff’s submissions...................................................................................................... 35
Consideration..................................................................................................................... 38

Conclusion......................................................................................................................................... 43

HIS HONOUR:

Introduction

The defendants apply to dismiss this proceeding for want of prosecution. Specifically, by summons filed on 16 July 2020, the defendants apply pursuant to Rule 24.01(b)(ii) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) and the Court’s inherent jurisdiction, further or alternatively, pursuant to Rule 24.05 of the Rules, that the proceeding be dismissed and there be judgment for the defendants accordingly.

Background Facts[1]

[1]These facts are taken from the affidavits filed in support and against the dismissal of the proceeding and the documents on the Court’s file.

The defendants are the executors and trustees of the estate of Anita Gertrude Steiner, deceased (the ‘deceased’ or ‘Anita’). The deceased died on 12 November 2011. On 10 January 2012, the defendants were granted probate of the deceased’s will dated 13 October 2011 (the ‘Will’).

The plaintiff is the former domestic partner of the deceased. He and the deceased had one child together, Emma Sarina Frances Lemmens-Steiner (‘Emma’). Emma was born in 2008. Anita had no other children. By her Will, Anita gave the residue of her estate to the Emma Sarina Frances Lemmens-Steiner Testamentary Trust (‘Emma’s Trust’), on the terms set out in Schedule A of the Will. Those terms include that until Emma reaches the age of 18, the defendants will jointly be the trustees of Emma’s Trust. The Will also…

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.

Continue reading Lemmens v Davis

Details

AGLC: Lemmens v Davis [2020] VSC 795
Case: [2020] VSC 795
Decision Date: 1 December 2020

CaseChat Overview and Summary

In Lemmens v Davis, the plaintiff sought family provision from the estate of her former partner, who had passed away. The defendants contested the claim, asserting that the proceedings had been unduly delayed. The matter was before the court to determine whether the plaintiff's delay in pursuing the claim warranted dismissal under Part IV of the Administration and Probate Act 1958 (Vic).

The court had to decide whether the delay in the proceedings was inordinate and if it could be deemed excusable. Additionally, the court needed to assess whether the defendants were prejudiced by the delay and if the merits of the claim should influence the outcome of the application. The court referenced Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863 and Sullivan v Greyfriars Pty Ltd, [2015] VSCA 196, among other authorities, to assist in determining these issues.

The court found that the delay was indeed inordinate and not excusable. The plaintiff had not provided satisfactory reasons for the delay, nor had she shown that the delay was in the best interests of justice. The court also found that the defendants were prejudiced by the delay, as it had hindered their ability to prepare a defence. The merits of the claim did not influence the court's decision, as the primary focus was on the procedural fairness and adherence to the rules of court. As a result, the court dismissed the plaintiff's claim for want of prosecution.

The final orders of the court were that the plaintiff's application for family provision be dismissed and that the defendants were entitled to their costs of the application.

Orders