Legal Research
Cases
Re Brumer; Sternfein v Bloom & Anor (No 2)

Re Brumer; Sternfein v Bloom & Anor (No 2)

Link copied

Case Copied 27 August 2024 41 min read

Contents

On this page

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2023 00814

ILAN STERNFEIN	Plaintiff
v
JONATHAN BLOOM (who is sued as the executor of the estate of MAURICE BRUMER, deceased) & ANOR (according to the attached Schedule)	Defendants

---

JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2024
DATE OF JUDGMENT:	27 August 2024
CASE MAY BE CITED AS:	Re Brumer; Sternfein v Bloom & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 506

---

FAMILY PROVISION – Summary judgment application – Appeal from orders made by Judicial Registrar dismissing application for summary judgment – Appeal allowed – Plaintiff’s Part IV application dismissed - Administration and Probate Act 1958 ss 3, 90, 90(g) - Charter of Human Rights and Responsibilities Act 2006 s 32 – Civil Procedure Act 2010 ss 62, 63, 64 - Justice Legislation Amendment (Succession and Surrogacy) Bill 2014 - Houssein v Under Secretary, Department of Industrial Relations & Technology (NSW) (1982) 148 CLR 88 - Wong v Silkfield (1999) 199 CLR 255 - Innes-Irons & Anor v Forrest [2016] VSC 782 - Bail v Scott-Mackenzie [2016] VSC 563 - Verraty Pty Ltd v Richmond Football Club Ltd [2020] VSCA 267.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Sparke KC	Zion Legal
For the Defendants	Mr W Gillies	TLM Law

TABLE OF CONTENTS

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

Factual background........................................................................................................................... 2

The Will................................................................................................................................................ 4

Key statutory provisions................................................................................................................... 4

The primary judgment...................................................................................................................... 5

Defendants’ submissions................................................................................................................. 9

Plaintiff’s submissions................................................................................................................... 12

Legal principles................................................................................................................................ 16

Consideration.................................................................................................................................... 20

Disposition........................................................................................................................................ 27

HIS HONOUR:

Introduction

This is an appeal against an order made by a Judicial Registrar on 11 April 2024 dismissing an application for summary judgment brought by the defendants in respect of the plaintiff’s application under Part IV of the Administration and Probate Act 1958 (the Act) for provision from the estate of Maurice Brumer.

Maurice Brumer died on 16 July 2022 at the age of 78. The defendants are the executors of his estate; probate of the deceased’s last will dated 23 June 2022 (the will) was granted to them on 5 September 2022.

The plaintiff, whose background and familial circumstances are set out in further detail below, describes himself as the former stepchild of the deceased. The deceased made no provision for him under the will. On 3 March 2023, he commenced the proceeding under Part IV of the Act.

On 25 August 2023, the defendants filed an application for summary judgment on the basis that the plaintiff’s claim had no real prospect of success because he was not an ‘eligible person’ within the meaning of the Act and thereby able to bring a claim for further provision.

In her reasons for judgment delivered on 20 March 2024, the Judicial Registrar dismissed the defendants’ summary judgment application on the basis that the plaintiff had a real prospect of establishing that he was an ‘eligible person’ within the meaning of the definition of the term in…

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.

Keep reading for free

Create a free CaseChat account to read Re Brumer; Sternfein v Bloom & Anor (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] VSC 506
Decision Date: 27 August 2024

CaseChat Overview and Summary

The appellant, Sternfein, sought summary judgment against the respondents, Bloom and another, in a family provision claim under the Administration and Probate Act 1958. The dispute arose from a family provision claim brought by Sternfein against Bloom, seeking financial provision from Bloom's deceased father's estate. Sternfein had previously sought summary judgment, which was dismissed by a Judicial Registrar. Sternfein appealed this decision to the Supreme Court of Victoria. The court had to determine whether the appeal should be allowed, and if so, whether the application for summary judgment should be granted.

The central legal issue was whether the appeal should be allowed, and if so, whether the application for summary judgment should be granted. The court considered whether there were any triable issues of fact or law that precluded summary judgment. The court also considered the effect of relevant legislation and case law on the application for summary judgment. Sternfein argued that there were no triable issues of fact or law, and that the application for summary judgment should be granted. The respondents argued that there were triable issues of fact or law, and that the application for summary judgment should be dismissed.

The court held that the appeal should be allowed, and that the application for summary judgment should be dismissed. The court found that there were triable issues of fact or law that precluded summary judgment. The court noted that the Administration and Probate Act 1958 and relevant case law required a consideration of all relevant facts and circumstances in determining a family provision claim. The court also noted that the Charter of Human Rights and Responsibilities Act 2006 and the Civil Procedure Act 2010 required a fair and just resolution of the dispute. The court held that the application for summary judgment should be dismissed, and that the matter should proceed to trial.

The court dismissed the appeal and the application for summary judgment. The matter was remitted to the Registrar for further proceedings.

Orders