JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2019
DATE OF JUDGMENT:	11 April 2019
CASE MAY BE CITED AS:	Re Bertine
MEDIUM NEUTRAL CITATION:	[2019] VSC 228

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PRACTICE AND PROCEDURE – Plaintiff seeks summary dismissal of caveat – Whether defendant has no real prospect of success – Whether discretion should be exercised to allow matter to proceed to trial – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 – Re Demediuk [2016] VSC 587 – Civil Procedure Act 2010 (Vic) ss 62, 63(1), 64.

PROBATE – Caveator objecting to grant of letters of administration to registered domestic partner – Defendant filed grounds of objection with particulars – Grounds alleging that no registrable domestic relationship existed and registration obtained for an improper purpose – Whether defendant has a real prospect of success in resisting grant of administration to registered domestic partner – Summary judgment refused – Caveator’s claim raises a debatable point of law – Where there are questions to be tried and matters to be investigated by the Court before it can determine to whom a grant of representation should be made, it is inappropriate to summarily determine the caveator’s claims – Not in the interests of justice to summarily dispose of the caveat – Disputes raised by the caveat are of such a nature that only a full hearing on the merits is appropriate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr PH Barton	Joan Scapetis
For the Defendant	Mr M McKenzie	Prior Law

TABLE OF CONTENTS

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

Procedural history.............................................................................................................................. 2

Affidavits............................................................................................................................................. 3

Dominique’s Caveat.......................................................................................................................... 4

Summary Judgment test.................................................................................................................... 6

Administration and Probate Act...................................................................................................... 8

Relationships Act............................................................................................................................. 10

The issues.......................................................................................................................................... 12

Analysis.............................................................................................................................................. 16

Conclusion......................................................................................................................................... 22

Schedule............................................................................................................................................. 23

Grounds of Objection................................................................................................................. 23

HIS HONOUR:

Introduction

The plaintiff (known as Mollie) applies for summary judgment pursuant to r 23.01(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) and s 61 of the Civil Procedure Act 2010 (Vic) (CPA).[1]
[1]Summons filed 3 October 2018.

Mollie is the applicant for letters of administration of the intestate estate of her deceased registered domestic partner, Charles Dillon Bertine (known as Dillon). The defendant (known as Dominique), is Dillon’s mother and has filed a caveat against the grant of administration to Mollie.

Mollie claims a grant of administration on the basis that she was Dillon’s registered domestic partner at the time of his death on 13 October 2017, intestate.[2] The registration of Mollie and Dillon as domestic partners was made pursuant to the Relationships Act 2008 (Vic) (Relationships Act) on 22 July 2014. Dillon was never married and had no children. He…

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 Re Bertine

Details

AGLC: Re Bertine [2019] VSC 228
Case: [2019] VSC 228
Decision Date: 11 April 2019

CaseChat Overview and Summary

In the matter of Re Bertine, the Supreme Court of Victoria was presented with a dispute regarding the grant of letters of administration to a registered domestic partner. The plaintiff sought a summary dismissal of a caveat filed by the defendant, who opposed the grant of administration. The legal issues before the court involved whether the defendant had a real prospect of success in their opposition, and if the court's discretion should be exercised to allow the matter to proceed to trial. The court considered relevant case law and statutory provisions, including Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, Mandie v Memart Nominees Pty Ltd, and Re Demediuk, as well as sections 62, 63(1), and 64 of the Civil Procedure Act 2010 (Vic).

The court's reasoning focused on the nature of the defendant's objections and the existence of a real prospect of success. The defendant's grounds of objection alleged that there was no registrable domestic relationship between the deceased and the registered domestic partner, and that the registration was obtained for an improper purpose. The court determined that these objections raised a debatable point of law and that there were questions to be tried and matters to be investigated before the court could decide to whom a grant of representation should be made. Given the nature of the disputes and the necessity for a full hearing on the merits, the court found that it was inappropriate to summarily determine the caveator's claims, and that it was not in the interests of justice to dispose of the caveat summarily.

The court ultimately refused the plaintiff's application for summary judgment and determined that the caveat should proceed to a full hearing. The court's decision was based on the need to thoroughly investigate the validity of the domestic relationship and the circumstances surrounding the registration, which could only be adequately addressed through a comprehensive examination of the evidence and arguments. This decision underscores the importance of ensuring that justice is served in cases involving the grant of representation, particularly where there are significant questions regarding the existence of a domestic relationship and the propriety of the registration.

Orders