Panoff and Ors v Brydon and Ors (Ruling)

[2012] VCC 2154

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
FAMILY PROPERTY DIVISION

Case No.  CI-12-02403

PETER GREGORY PANOFF	First Plaintiff
SONIA MARIA PANOFF	Second Plaintiff
v
RICHARD WILLIAM BRYDON	First Defendant
ANTHONY LEE BRYDON	Second Defendant
WAYNE BRYDON	Third Defendant
NEVILLE BRYDON	Fourth Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2012
DATE OF RULING:	14 November 2012
CASE MAY BE CITED AS:	Panoff & Ors v Brydon & Ors (Ruling)
MEDIUM NEUTRAL CITATION:	[2012] VCC 2154

RULING

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SUBJECT: PRACTICE AND PROCEDURE                  
CATCHWORDS: Application for summary judgment by the defendants pursuant to s62 of the Civil Procedure Act 2010 – whether affidavit material in a Part IV claim under the Administration and Probate Act 1958 disclosed a claim which had a real prospect of success
LEGISLATION CITED: Administration and Probate Act 1958; Civil Procedure Act 2010
CASES CITED: Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd; Nodco Pty Ltd [2011] VSC 222

RULING: the summons is dismissed, and the plaintiffs costs of the summons be assessed by the Costs Court and be paid on a solicitor/client basis out of the estate of the deceased, in default of agreement.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Pascoe	McNab McNab & Starke
For the First Defendant	-	-
For the Second Defendant	-	-
For the Third Defendant	Ms C McOmish	Robertson Hyetts Lawyers

HIS HONOUR:

Introduction

1       Evelyn Iris Panoff died on 29 April 2011.  She did not leave a will.  Letters of Administration were granted to the first plaintiff on 23 November 2011.  The deceased has seven children.

2       The defendants, save for the fourth defendant, are children of a marriage between William Brydon and the deceased.  The fourth defendant is a child of a union between Ronald Pentland Thomson and the deceased.  The plaintiffs are children of a marriage between Assen Panoff and the deceased.

3       The deceased left an estate valued in excess of $800,000.  In the absence of a will, each of the deceased's children are entitled to one seventh of her net estate.  The plaintiffs claim that the deceased owed them a responsibility, and was in breach of that responsibility by not adequately providing for their maintenance and support.

4       The foregoing is sufficient to give the briefest outline of the relationship of the parties to the deceased, the size of the estate, and the claims made upon the estate.

The Summons

5       The plaintiffs commenced their proceeding by Originating Motion between the parties filed 22 May 2012.  Each of the Brydon children are named as defendants.

6       Unfortunately, the defendants are not represented by one firm of solicitors.  There are three firms of solicitors on the record representing the defendants.

7       The firm of Robertson Hyetts have been retained by the third defendant.  The third defendant filed a Summons[1] returnable on 27 September 2012. The Summons seeks an order that the plaintiffs’ Originating Motion be summarily dismissed pursuant to s62 of the Civil Procedure Act 2010.[2]

[1]The copy of the Summons on the file is undated

[2]I was informed by Ms McOmish that the other defendants supported the Summons, but were content to have the third defendant to prosecute the Summons

8       By an order made on the papers, and by consent, the date for the hearing of the Summons was adjourned to 8 November 2012 before me.  On the return of the Summons I was informed by Mr Pascoe of counsel, who appeared for the plaintiffs, and Ms McOmish of counsel who appeared for the third defendant, that the third defendant did not propose to pursue the relief sought by the Summons.  As a result, Mr Pascoe made an application that the plaintiffs’ costs be paid out of the estate on a solicitor/client basis.

The Issue

9       The determination whether the plaintiffs are entitled to their costs requires an examination of the state of the plaintiffs’ cases at the time when the Summons was filed.

10      In substance, Ms McOmish submitted that the affidavit material relied upon by the plaintiffs at the time when the Summons was filed was so inadequate that no case was disclosed on which they could hope to obtain further provision.  Mr Pascoe, on the other hand, submitted that when regard was had to the whole of that affidavit material, that a very different position emerged.

The Plaintiffs Affidavit Material

11      The plaintiffs’ filed and served the following affidavit material:

·     An affidavit of Peter Gregory Panoff sworn 7 June 2012.

·     An affidavit of Sonia Maria Panoff sworn 14 June 2012.

·     An affidavit of Gary Assen Panoff sworn 22 May 2012.

12      Subsequently, further affidavit material was filed and served by the plaintiffs which altered the view of the third defendant, and I assume the other defendants, that the Summons would not succeed because the further affidavit material was adequate when compared with the earlier affidavit material.

The Relevant Principles

13      A determination of the question necessitates, firstly, to determine what it is a claimant must demonstrate in affidavit material to invoke the jurisdiction under Part IV of the Administration and Probate Act 1958, and secondly, on what basis a claim can be dismissed pursuant to s62 of the Civil Procedure Act 2010.

14      The legislative scheme provides that by s91(1), there is a discretion in the Court to make provision out of the estate of the deceased for the proper maintenance and support of a claimant for whom the deceased owed a responsibility to make such provision.

15      Subsection (3) prohibits a court from making such an order unless the distribution of the estate of the deceased did not make adequate provision for the proper maintenance and support of the claimant, in other words, the claimant must provide what is commonly described as “need”.

16      Subsection (4) provides that in determining the questions raised by ss(1) and (3), the Court must have regard to paragraphs (e) to (p).  It is self evident that any affidavit material filed by a claimant in support of a claim must condescend at least to evidence of responsibility and need.

17      Peter Gregory Panoff does depose to responsibility and need in his affidavit.  Essentially, he says that he is a child of the deceased; he worked in the family business known as Peninsula Garden Supplies from the age of fourteen years, undertaking significant work with his brother and sister; that his relationship with the deceased was “excellent”; that he has a house valued at $290,000 with a mortgage of $149,000; a car of modest value; a credit card debt of $12,000, and gross earnings of $800 per week.  His financial circumstances are modest.

18      Sonia Maria Panoff does depose to responsibility and need in her affidavit.  She swore an affidavit which is very brief and extremely short on detail.  Essentially, she says that she is a child of the deceased; that she had a good relationship with the deceased; that she suffers depression and is on a disability pension.  She describes her accommodation as living in “a Homewest Unit”, but does not say whether she owns the unit, and if so, something about its value.  She then says that she does not have “much financially”, but does not say what she has by way of financial resources on which you can call.  Her reference to working in the family business is brief.  She says that she helped her parents in the office of the family business, but provides no further details of what that help amounted to.

19      Gary Assen Panoff does depose to responsibility and need in his affidavit.  Essentially, he says that he is a child of the deceased; he worked in the family business undertaking significant work with the deceased, his brother and sister; he alleges that he has suffered a lung disease due to exposure to substances in evidence at the family business premises which has required medical treatment; that he is now on a full disability pension and is unable to work; that he has a house worth $400,000 with a mortgage of $200,000 and other assets amounting to $93,000, but many of those appear to be depreciating assets, and one valued at $50,000 is furniture.

20      I think it is a mistake to look at the affidavits individually.  Each of the plaintiffs will be entitled to rely on other evidence, and in particular, other evidence in the other plaintiffs’ affidavits.  What I have gleaned from the global nature of the matters deposed to by the plaintiffs is that each of them are children of the deceased; they each worked in the family business; apart from Peter, the other two plaintiffs are on disability pensions; Peter and Gary own their own homes, but have significant mortgages, although Sonia has not said that she owns the unit, the inference is that she does not given that she is on a disability pension.

21      In each case I think that the plaintiffs have established that the deceased owed each of them a responsibility, and that they each have need, although, it might be arguable that Peter’s need is less because he is in employment, and is in good health.  Subject to competing claims relevant to need as between the plaintiffs, and balanced against the needs of the defendants, I do not accept that it can be said that the affidavit material is so deficient to characterise the plaintiff claims as having no real prospect of success.

22 Section 62 of the Civil Procedure Act 2010 provides that a defendant in a civil proceeding may apply to the court for summary judgment on the ground that the plaintiff's claim, or part of it, has no real prospect of success. Justice Dixon provided a very helpful summary of the relevant principles to be applied when considering such an application in Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd and Nodco Pty Ltd.[3]

[3][2011] VSC 222 at paragraph 18

23      His Honour noted that the test is a less stringent one, but after reviewing a number of relevant authorities, he referred to two matters which are highly relevant here, firstly, I am not required to determine whether the plaintiffs proceedings will fail, but secondly rather to make a practical judgment as to whether a claim has more than a "fanciful" prospect of success.

24      Firstly, when all the evidence in the plaintiffs’ affidavits is considered it may well be that they will all prove need, but whether the competing claims will see provision being made is of course another matter.  From a practical judgment point view I have concluded that it cannot be said that the plaintiffs’ claims have no more than a fanciful prospect of success.

Orders

25      The orders I will make, therefore, are that the summons is dismissed and that the plaintiffs’ costs of the summons be assessed by the Costs Court and be paid on a solicitor/client basis out of the estate of the deceased, in default of agreement.

26      Through an arrangement made with counsel I will e-mail this ruling to counsel together with procedural orders, and will operate on the assumption that counsel will inform their respective instructing solicitors to ensure that this ruling and the orders are distributed to the other parties who did not appear on the return of the summons.

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