Re Stojanovska; Stojevski v Stojevski
[2020] VSC 702
•22 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2020 00165
IN THE MATTER of the Estate of AGAPI STOJANOVSKA, deceased
- and –
IN THE MATTER of Part IV of the Administration and Probate Act 1958
BETWEEN:
| PETRE STOJEVSKI | Plaintiff |
| v | |
| TRAJCHE STOJEVSKI (in the Will called TRAJCE STOJEVSKI) and GICA DOJCHINOVIKJ (in the Will called GICA DOJCINOVIC) (who are sued as executors of the estate of the above named deceased) | Defendants |
---
JUDICIAL REGISTRAR: | Judicial Registrar Englefield |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 August 2020 |
DATE OF JUDGMENT: | 22 October 2020 |
CASE MAY BE CITED AS: | Re Stojanovska; Stojevski v Stojevski and Anor |
MEDIUM NEUTRAL CITATION: | [2020] VSC 702 |
---
FAMILY PROVISION - Eligibility as a member of the household - dependency on the deceased at any time and at the time of death – Threshold and quantum dependency – Where other causes of action may exist – Defendants seeks summary judgment on plaintiff’s claim – Administration and Probate Act 1958 (Vic) ss 91(2)(b), 91(4)(d) and 91(5)(b) - Civil Procedure Act 2010 (Vic) ss 62 and 63.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M McKenzie | Constable Conner & Co Solicitors |
| For the Defendant | Mr A Verspaandonk | My Legal Crunch Lawyers |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Summary of Relevant Facts:............................................................................................................. 2
Summary of submissions................................................................................................................. 5
Summary dismissal and Testators Family Maintenance (‘TFM’) Claims............................... 7
Member of the household.............................................................................................................. 10
Threshold dependency............................................................................................................... 10
Dependency for Accommodation.................................................................................... 15
The “agreement” or “arrangement” to give the plaintiff a house if he supervised building works at the deceased’s properties.................................................................................. 16
Conclusion on Threshold Dependency........................................................................... 18Quantum Dependency............................................................................................................... 18
Conclusion......................................................................................................................................... 19
JUDICIAL REGISTRAR:
Introduction
Petre Stojevksi (‘plaintiff’) seeks provision from the Estate of his maternal aunt Agapi Stojanovska (‘deceased’) pursuant to pt IV of the Administration and Probate Act 1958 (Vic) (‘Act’).
By summons filed 2 May 2020, the defendants seek summary judgment on the basis that the plaintiff’s claim has no real prospect of success (‘application’).[1] The application was referred to me for hearing and determination by order of Derham AsJ made 24 June 2020.
[1]Civil Procedure Act 2010 (Vic) ss 62, 63.
The plaintiff relies on paragraph (k) of the definition of ‘eligible person’ in s 90 of the Act to apply for provision from the estate. This reads:
a person who, at the time of the deceased's death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member.
Where a person relies on paragraph (k) of the definition of eligible person, pursuant to s 91(2)(b) of the Act, the Court must not order provision for a plaintiff unless satisfied that the plaintiff was wholly or partly dependent on the deceased for his proper maintenance and support, at some time in their mutual lifetimes.[2]
[2]Veniou v Equity Trustees Limited [2018] VSC 832, [49] (‘Veniou’).
In addition, if s 91(2)(b) of the Act is satisfied, the Court when determining the amount of provision must take into account, among other things, the degree to which the person was wholly or partly dependent on the deceased for their proper maintenance and support at the time of the deceased’s death and any provision that is ordered must be ‘proportionate’ to that degree of dependency.[3]
[3]Administration and Probate Act 1958 (Vic) ss 91(4)(d) and (5)(b) (‘Act’).
For the following reasons, I am satisfied that, the plaintiff was not at any time wholly or partly dependent on the deceased for his maintenance and support and therefore, the claim has no prospects of success. Summary judgment will be given to the defendants.
Summary of Relevant Facts:
This summary is taken from the affidavits filed by and on behalf of the plaintiff in the proceeding.[4] For the purposes of the application, the plaintiff’s evidence should be treated as accepted and taken at its highest.[5]
[4]Affidavit of Petre Stojevski sworn 25 February 2020 (‘Plaintiff’s Affidavit’); Affidavit of Fana Gorgievska sworn 25 February 2020 (‘Gorgievska Affidavit’).
[5]Defendants’ Outline of Submissions, 9 June 2020, [13] (‘Defendants’ Submissions’).
The deceased and her husband arrived in Australia in or about 1968. They had no children. Eventually, they bought six properties around Melbourne’s inner west.
The plaintiff arrived in Australia in 1977 and his wife joined him the following year. The plaintiff and his wife lived within ’10 minutes’ of the deceased and her husband. The plaintiff saw his aunt and uncle at least weekly and on all significant occasions, such as Christmas and Easter, and they also occasionally went on holidays together. The plaintiff says the relationship that developed was akin to a mother-son relationship. The deceased became close to the plaintiff’s three children, who addressed the deceased as “Baba”, meaning grandmother.
At times, the deceased and her husband spoke of returning to Macedonia. In 2008, they said they were planning to sell ‘most’ of their houses. The deceased’s husband commenced renovations at one property but fell ill and died one or two years later in early January 2011. The renovations were left in ‘disarray’.
After the death of the deceased’s husband, the plaintiff and his wife started caring for the deceased. From this time, the plaintiff and his wife drove the deceased wherever she needed, cooked, cleaned and gardened for her. Nonetheless, the deceased was lonely.
On 7 December 2012, the deceased made her last will (‘Will’).[6] The Will named the defendants as executors and left them the residuary estate. The defendants are the plaintiff’s brother and sister, who reside overseas. The deceased visited Macedonia on at least four occasions during her decades in Australia, but the defendants never visited the deceased here. According to the plaintiff’s affidavit, the estate in the inventory of assets and liabilities is valued at approximately $3,475,000.
[6]Plaintiff’s Affidavit (n 4), exhibit PS-1.
In January 2013, the deceased asked to live with the plaintiff and his wife. They happily took her in, assisted her with her daily needs and did not ask for any contribution to the cost of food or ‘expenses’. A routine then developed where the deceased would stay with the plaintiff for a few months, then go home for a short while, before returning to stay with the plaintiff for another few months. During this period, the deceased asked the plaintiff to help to renovate three of her properties in preparation for sale. The plaintiff’s own property needed remedial and aesthetic work, which he had commenced. The deceased said that when she had sold most of her properties she would give the plaintiff a house ‘to help take care of [his] family’. She told him not to bother renovating his own home, but help her instead. The plaintiff understood this to be an ‘agreement’ that he help her renovate her properties and in return she would give him a house. The plaintiff spoke to his wife about the ‘agreement’ and thereafter he ‘promised’ the deceased that he would help her.
In mid-2013, the plaintiff arranged exterior rendering for one of the deceased’s properties prior to it being sold.
The plaintiff supervised extensive building works at a property where the deceased’s husband had commenced renovations. The plaintiff worked five days a week for 10 to 12 months, until the project was completed in mid-2014. The deceased paid all costs, with the plaintiff driving her to the bank to withdraw money for this purpose. During this project, the deceased effectively promised the plaintiff that she would always ‘look after’ the plaintiff and his siblings. Once this project was finished, the plaintiff took the lead in appointing a real estate agent and organising the sale. In January 2015, this property sold for $711,000. The plaintiff was not ‘paid’ for his ‘time’ in undertaking this project. He did not ask to be paid ‘because of the promise’ made to him by the deceased.
On 5 March 2015, the plaintiff and his family were the victim of a ‘home invasion’ committed by another nephew of the deceased (‘the nephew’). Even though the deceased was not staying with the plaintiff that night, in the days following the deceased decided to move back to her own home to create ‘distance’ for the plaintiff’s safety. The nephew had a drug addiction and regularly asked the deceased for money for his needs. The deceased told the plaintiff that she gave money to the nephew but did not reveal to the plaintiff how much or how often.
Even after the deceased no longer stayed overnight with them, the plaintiff and his wife still provided food, company and care to the deceased. Most days, the plaintiff and his wife collected the deceased to stay the day with them at their home and, in addition, visited her in her own home a few times a week. The plaintiff’s wife bought food and cleaned for her. The plaintiff and his wife continued to drive the deceased wherever she needed.
The plaintiff supervised a further building project at another property which then sold in October 2015 for $410,000.
At unknown times, the plaintiff arranged or carried out ‘general maintenance’ or ‘renovation’ work at three of the deceased’s other properties, including the deceased’s home.
The plaintiff and his wife also felt fearful after the ‘home invasion’ and decided to sell their home to their sons in May 2016 for $700,000. At this point, the plaintiff goes onto give hearsay evidence of comments made to him by a real estate agent to the effect that had he renovated his home prior to sale, the market value of his property might have been increased to $950,000. Even on a summary dismissal application, where the plaintiff’s evidence is to be taken at its highest, I give no weight to these second-hand reports of unqualified opinion regarding a non-occurrence.
In mid-2017, the deceased was diagnosed with lung cancer. Her sister moved in with her to give care. The deceased shielded the plaintiff from this diagnosis until about a month before the deceased died in June 2018. The plaintiff regularly spoke with the deceased on the phone but limited visits due to the presence of the nephew or his family members.
The plaintiff’s evidence is supported by one of the plaintiff’s close friends and long-standing neighbours, Fana Gorgievska.[7] Ms Gorgievska frequently visited the plaintiff’s home, on weekends before retiring in 2008 and thereafter almost daily. Ms Gorgievska observed that the deceased was at the plaintiff’s home more often after the death of her husband in 2011. Ms Gorgievska confirms the period that the deceased lived with the plaintiff and her continued visits to the plaintiff after the deceased moved back home in 2015. Ms Gorgievska and the deceased had conversations regarding the plaintiff’s work on the deceased’s properties, the deceased’s gratitude for the plaintiff’s role in her life and the deceased’s intention to provide for the plaintiff in her will. The deceased told Ms Gorgievska many times that she loved the plaintiff like a son. Ms Gorgievska did not see the deceased again after May 2016, when the plaintiff sold his home to his sons and moved away. The plaintiff and his wife continued their relationship with Ms Gorgievska when visiting their sons.
[7]Gorgievska Affidavit (n 4).
The plaintiff and Ms Gorgievska speak of a warm, loving, close relationship between the deceased and the plaintiff.
The plaintiff has been in receipt of disability support pension, or predecessor benefits, for over 33 years. He suffers poor mental and physical health. His wife works limited hours as a kitchen hand. They own a home valued at $457,000 and two modest cars. They have minimal savings of $1,500 and a credit card debt of $2,000. They have no superannuation.
Summary of submissions
The defendants do not concede eligibility as a member of the household, but do not seek to summarily dismiss on this basis. Rather, summary dismissal is sought on the basis that even if eligibility were to be established at trial, there is no basis on which the plaintiff can establish he was dependent on the deceased at the time of death, as required for an order for provision to be made under ss 91(4)(d) and (5)(b) of the Act, so the proceeding has no real prospect of success.[8] Dependence, in the defendants’ submission, is limited to ‘actual receipt’ of material aid or financial assistance, relying on Veniou v Equity Trustees Limited[9] (‘Veniou’). The defendants foreshadowed this application at the first directions hearing and orders were made, by consent, for the plaintiff to file further affidavits.
[8]Defendants’ Submissions (n 5), [8-10].
[9]Veniou (n 2).
The plaintiff submitted that the summary dismissal application was premature and this puts an additional onus on the defendants to satisfy the ‘no real prospect’ test.[10] The plaintiff’s advisors expected the summary dismissal to focus on eligibility not dependence and seek to rely on the lack of ‘notice’ for an opportunity to expand or re-frame the proceeding, to include ‘promissory estoppel’ and contract.[11] The plaintiff’s submissions equate this summary dismissal application with a ‘pleading summons’ where an opportunity to re-plead would ‘always’ be provided.[12] The plaintiff submits the defendants must present evidence on the lack of ‘actual receipt of material aid’ and he needs to be given an opportunity to ‘make good’ the missing element in his evidence.[13] In the alternative, the plaintiff submitted that material aid was provided to the plaintiff by the deceased by way of promises of benefit and reimbursement of expenses during various building works carried out by the plaintiff for the deceased.[14] The plaintiff’s submissions introduce the concept of ‘emerging dependence’ where the plaintiff had a growing and developing dependence on the deceased as his time and effort in the building works created a greater moral duty on the deceased to provide benefits that were proportionate to this dependence.[15]
Summary dismissal and Testator s Family Maintenance (‘TFM’) Claims
[10]Plaintiff’s Outline of Submissions in response, 30 June 2020, [4] (‘Plaintiff’s Submissions’).
[11]Ibid, [12], [50 (sic)].
[12]Ibid, [15], [18].
[13]Ibid, [32 (sic)]
[14]Ibid, [34 (sic)].
[15]Ibid, [35-50 (sic)].
Summary judgment is available under s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’) where a claim has no real prospect of success. A ‘real prospect’ is more than a ‘fanciful chance’.[16] Power to summarily dismiss should be exercised with caution[17] but consistently with the Court’s own obligations to give effect to the overarching purposes of the CPA. That is, to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in this litigation. On the other hand, s 64 of the CPA permits the continuation of a proceeding despite it having no real prospect of success if the Court is satisfied that:
(a) it is not in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
[16]Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27, [29], [35(a)].
[17]Ibid, [35(d)].
Additional caution may arise in summary dismissal applications involving TFM claims when the issue in dispute is whether or not there was a moral duty to provide or whether provision left in the will was adequate and proper.[18] These issues involve the exercise of discretions or ‘value judgments’ in an instinctive synthesis.[19] Such issues may need to proceed to trial, if unresolved by the parties. It is only where it is absolutely clear that a family provision claim has no real prospect of a favorable exercise of discretion, or is ‘bound to fail’, that summary dismissal must be given.[20]
[18]Warren v McKnight (1996) 40 NSWLR 390, 396; El-Zaouk v Draybi [2010] NSWSC 1001, [16-25], [28], [32]; Wolff v Deavin [2012] NSWSC 1315, [35-8]; Jackson v Newns [2011] VSC 32, [11]; IMO the Will and Estate of William James Milburn [2014] VSC 229, [34]; Bail v Scott-Mackenzie [2016] VSC 563, [42]; Innes Irons and anor v Forrest [2016] VSC 782, [38].
[19]Grey v Harrison [1997] 2 VR 359, 366.
[20]Re Rattle; O’Neil; v Equity Trustees Ltd [2019] VSC 565, [58].
Here, while the defendants do not concede that the plaintiff comes within paragraph (k) of the definition of eligible person, the issue for this application is whether the plaintiff has shown dependency on the deceased at the time of the deceased’s death. This is essentially a question relating to the construction of the phrase ‘dependent on’ the deceased introduced by amendments made to the Act in 2014[21] and requires factual determinations, taking the plaintiff’s evidence at its highest.
[21]Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic), commencing for deaths occurring on or after 1 January 2015.
Summary judgment will be ordered more readily where the issue involves a pure question of law than where there is a disputed question of fact.[22] Here the facts are not disputed. It is the application of the facts as asserted by the plaintiff to the law as it currently stands, which is the subject of this application by the defendants.
[22]Re Demediuk [2016] VSC 587, [18]; Mutton v Baker [2014] VSCA 43, [19].
The plaintiff submitted that a ‘burden of proof’ falls on the defendants in a summary dismissal application to identify the flaws in the plaintiff’s case and that an opportunity to ‘re-cast’, akin to a ‘pleading dispute’, ought to be provided.[23]
[23]Plaintiff’s Submissions (n 10) [18]; Transcript of Proceedings (Supreme Court of Victoria, S ECI 2020 00165, Englefield JR, 6 August 2020), 32, [19-27] (‘Transcript’).
After the hearing, counsel for the plaintiff kindly provided the Court and the defendants with reference to Re Winter-Cooke.[24] This case relates to a dismissal of a summary dismissal application by a defendant in a TFM claim. The facts and procedural history of that case are complex and involved, among other things, a farming enterprise operated in a company structure since 1953, two deaths in 1990 and 2008 respectively, distributions from a family trust, three deeds, loans between related entities and persons connected to the litigation, and an earlier summary dismissal application in 2017 which resulted in orders for pleadings regarding the deeds and provision under a will.
[24]Re Winter-Cooke [2020] VSC 588 (‘Winter-Cooke’).
In Re Winter-Cooke,[25] McMillan J cites a leading case regarding the obligations of a defendant responding to a summary dismissal application in a claim involving pleadings:
The approach to evidence in a summary judgment application was discussed in Hausman v Abigroup Contractors Pty Ltd (‘Hausman’). An affidavit in support of a summary judgment may contain a statement of fact based on information and belief, subject to the Court being prepared to admit it. Where a summary judgment application is brought by a plaintiff, what must be verified are the facts necessary to establish a good cause of action. A defendant is then required to use reasonable diligence to put before the Court all the evidence relied upon in summary form. While ‘an affidavit in opposition to an application for summary judgment need not set out, in chapter and verse, every detail of the defendant’s position’, it must ‘provide some basic evidentiary foundation for whatever response is being made’. Further:
A judge faced with an application for summary judgment should not be required to trawl through the defendant’s material in an effort to see whether there can be constructed from that material an answer to the plaintiff’s claim. It must be for the defendant to point to some material, whether legal or factual, that provides an arguable response to that claim. That is so even if it is the plaintiff who must ultimately discharge the burden of persuading the judge that there is no issue that warrants trial, and that summary judgment should therefore be granted.
(citations omitted).
[25]Ibid, [89].
The plaintiff submits here that he should not have to ‘trawl’ through his own material to find what is missing and that it falls to the defendants to present material to satisfy the Court that the plaintiff cannot succeed in showing ‘actual receipt of material aid’.[26]
[26]Plaintiff’s Submissions (n 10), [16].
This misunderstands Hausman,[27] which deals with the obligations that fall on a defendant who opposes summary dismissal in litigation involving pleadings, not an applicant defendant in an originating motion proceeding. Although Re Winter-Cooke is a family provision claim, it also involves complex issues of evidence and law regarding a family’s financial and legal interactions over many decades, particularly regarding events surrounding the execution of the deeds and the interplay between the deeds and the family provision claim. This meant that the citation from Hausman was uniquely relevant to the question of the interests of justice in Re Winter-Cooke.
[27]Hausman v Abigroup Contractors Pty Ltd (2009) 29 VR 213.
The ordinary obligations of a defendant who seeks summary dismissal in a TFM proceeding is to do no more than the defendants here have done, file a summons and abide by the directions made by the Court for the hearing of the summons. In fact, the defendants on this occasion informed the plaintiff and the Court at the first case management directions that the defendants were seeking instructions as to an application for summary dismissal of the plaintiff’s claim. The case management orders made that day permitted the plaintiff to file further affidavits in support of his claim in this proceeding. The plaintiff did not avail himself of this opportunity.
Member of the household
As can be seen from the facts summarised above, the plaintiff was not a member of the same household as the deceased at the time of death of the deceased. Therefore, in order for the plaintiff to be eligible to make a claim for provision from the estate under paragraph (k) definition of eligible person, evidence is required of:
(a) membership of the same household as the deceased in the past; and
(b) the plaintiff was:
(i) at the time of the deceased’s death;
(ii) likely;
(iii) in the near future;
(iv) had the deceased not died;
(v) to again become a member of the household of which the deceased was also a member.
It must be noted here that although the plaintiff’s evidence sets out a period between January 2013 and ‘2015’, in which the deceased lived for months at a time with the plaintiff and his wife, there is no evidence regarding any likelihood of the plaintiff again being in the same household as the deceased. Indeed, the evidence is that alternative care arrangements were in place and contact between the plaintiff and the deceased was reduced in the final period of the deceased’s life.[28]
[28]Plaintiff’s Affidavit (n 4), [83].
Threshold dependency
As the plaintiff relies on paragraph (k) of the definition of eligible person, the Court must not order provision for the plaintiff unless satisfied that the plaintiff was wholly or partly dependent on the deceased for his proper maintenance and support, at some time in their mutual lifetimes,[29] by s 91(2)(b) of the Act.
[29]Veniou (n 2), [49].
I have referred to this requirement as ‘threshold dependency’ in Re Meuleman; Quminakelo v Amidzic (‘Re Meuleman’)[30] and Dunn v Perpetual Trustee Company Ltd (‘Dunn’).[31] In both Re Meuleman and Dunn, the deceased person had provided the plaintiff with accommodation and various other forms of financial or material support prior to the time of death of the deceased, so that the ‘threshold dependency’ required by s 91(2)(b) of the Act was not part of the decisions to give summary judgment to the defendant in those cases.
[30]Re Meuleman; Quminakelo v Amidzic [2020] VSC 376 (‘Re Meuleman’).
[31]Dunn v Perpetual Trustee Company Ltd [2020] VSC 611.
In this case, although the plaintiff provided significant personal, practical and material assistance to the deceased over many years, there is no evidence of the deceased providing the plaintiff with any financial, material or practical support or assistance at any time.
Naturally, the defendants rely on this absence of any evidence of material or financial aid given by the deceased to the plaintiff to argue that there is no dependency to satisfy s 91(2)(b) of the Act. However, the submissions took the analysis of the authorities slightly further, to essentially argue that dependency may be considered as a ‘functional’ relationship between a person in need of support and another person who provides the support that is needed.[32]
[32]Transcript (n 23), 9.
There is a risk that as the decision in this case is straightforward, dependency might be understood as equally straightforward. Defining dependency as a functional relationship between a person in ‘need’ and a person who provides ‘actual material aid’ to fulfil that demonstrated need might unduly narrow the concept of dependency in the Act. In Spata v Tumino (‘Spata’),[33] the New South Wales Court of Appeal[34] referred to Barns v Barns,[35] observing that their Honours:
...held that the correct approach to construction of a provision such as s 57(1)(e) of the Succession Act[36] is that the court should be astute not to place a restricted construction upon the terms of such a law.
[33]Spata v Tumino [2018] NSWCA 17 (‘Spata’).
[34]Ibid, [71] (per Payne JA, Macfarlan JA and Sackville AJA agreeing).
[35]Barns v Barns (2003) 214 CLR 169; [2003] HCA 9, [44] (per Gummow and Hayne JJ) and [124] (per Kirby J).
[36]This section of the Succession Act 2006 (NSW) deals with the New South Wales concept of ‘member of a household’ and ‘dependency’.
Dependence has long been understood as being determined on the basis of the actual fact of dependence. However, as the authorities on dependency in other jurisdictions show, dependency can exist without support being provided and support can be provided without dependency existing. As noted by the Court of Appeal in Spata:[37]
In Amaca Pty Ltd v Novek [2009] NSWCA 50 at [45], this Court endorsed the earlier statement about ‘dependency’ in Middleton v Kiama District Hospital [1970] 3 NSWR 136 at 138:
Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of ‘dependants’ does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a ‘dependant’ is a member of the workers’ family who was ‘wholly or partly dependent for support upon the worker at the time of his death’. Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts’ Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.
[37]Spata (n 33), [79].
The defendants are correct that dependency in s 91 of the Act involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance.[38] As noted by Gibbs J, as he then was, in Kauri Timber Co. (Tas.) Pty. Ltd. v Reeman (‘Kauri Timber’),[39] “[t]he standard of support is set by the parties themselves”.[40] Hallen J in Russell v NSW Trustee and Guardian[41] broadens ‘need’ further:
The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support. [emphasis added].
[38]Alexander v Jansson [2010] NSWCA 176, Basten JA, Handley AJA agree with Brereton J.
[39]Kauri Timber Co. (Tas.) Pty. Ltd. v Reeman (1973) 128 CLR 177, 189 (‘Kauri Timber’).
[40]Ibid, 190.
[41]Russell v NSW Trustee and Guardian [2013] NSWSC, 370.
In Kauri Timber,[42] Gibbs J clarified that a person could be a dependent of another person even though they have property or income sufficient for their own independent self-support:
Although there is little authority on the question that now falls for decision, it has repeatedly been emphasised, in cases in which workers compensation legislation similar in effect to that of Tasmania has been considered, that the question of dependency is governed by factual and not by theoretical considerations. It has been held that a mother may be dependent on a son who has no legal obligation to maintain her but who in fact contributes to her support: Hodgson v West Stanley Colliery [1910] AC 229. On the other hand, a wife would not be dependent on her husband simply because she had a legal right to be supported by him: New Monckton Collieries Limitedv Keeling [1911] AC 648. The fact that a daughter was physically able to support herself by her own exertions did not prevent her from being held to be wholly dependent on her father: Simms v Lilleshall Coal Co [1917] 2 KB 368. The effect of the authorities was summed up in a sentence by Fullagar J in Fenton v Batten [1948] VLR 422, at p 423, when he said: ‘If the evidence establishes that the alleged ‘dependent’ relied or relies on another as the source, wholly or in part, of his or her means of subsistence, then dependency is established’. The principle underlying these authorities is that it is the actual fact of dependence or reliance on the earnings of another for support that is the test. It follows that the fact that a woman has some property and income of her own does not prevent her from being wholly dependent on the earnings of her husband, if in fact she wholly depends on those earnings for her support, and does not partly support herself out of her own resources. [emphasis added]
[42]Kauri Timber (n 38), 189.
The case of Tobin v Ezekiel[43] supports the conclusion that dependency in the context of family provision claims means actual reliance on the deceased for the total or partial satisfaction of some need, and is not limited to purely financial or material matters. In Veniou, Lansdowne AsJ left open the question of whether “non-material or emotional support could fall within the word ‘support’, or be necessary, in the case of an individual, for that individual to ‘continue existing or operating’.”[44] However, emotional dependency alone without any element of financial support or material aid is insufficient, unless perhaps the plaintiff is a small child or otherwise incapable of self-care.[45] That is, generally, so long as some actual financial or material aid were provided to the dependent, the existence of emotional dependency may amplify the degree of the dependency.
[43]Tobin v Ezekiel 83 NSWLR 757, [109] (per Meagher JA, Basten and Campbell JJA agreeing) (‘Tobin’).
[44]Veniou (n 2), [50].
[45]Benney v Jones (1991) 23 NSWLR 559, [560] (per Mahoney JA; [566] per Priestley JA; Meagher JA agreeing); Petrohilos v Hunter (1991) 25 NSWLR 343 (Hope AJA, Clarke and Sheller JJA agreed).
It is important to place the discussion of dependency in Veniou in context. In Veniou, the plaintiff relied on a prior representation by the deceased, to provide material aid to the plaintiff after the death of the deceased, to seek to establish dependency on the deceased during the deceased’s lifetime. Lansdowne AsJ said at [54] that dependency in s 91 of the Act requires the actual receipt of material aid for the eligible person’s proper maintenance and support prior to the death of the deceased, in the context of rejecting this argument [emphasis in original]. This point is emphasised again at [68] when Lansdowne AsJ observes dependence ‘means actual receipt of material aid at that point in time, not a mere promise of some undefined financial aid in the future.’
The futurity of a promise of provision of material aid after death means that there can be no dependence on the promisor as the material aid is not actually to be provided by the promisor. The word ‘actual’ is used to describe material aid that is received in the deceased’s lifetime as opposed to promised future aid. The central point in Veniou is that for a plaintiff to be wholly or partially ‘dependent on’ the deceased for their proper maintenance and support, the dependence must be for actual receipt of material or financial aid in the lifetime of the deceased, not the promised receipt of material aid after the death of the deceased.
The point here is that it is possible for dependency to exist where no support is provided. For example, where there is non-payment of child support obligations, a child may still be considered dependent on an actual receipt of material aid during the currency of those obligations, although no payments were made. The child’s dependency is not necessarily set aside by failure to meet such obligations. Equally, it is possible for actual material or financial support to be provided without dependency arising. There must also be a need for or reliance on support, but this should not be elevated to requiring evidence of a lack of resources for self-support. It is necessary to explore the whole of the facts of the relationship between the plaintiff and the deceased to determine whether the plaintiff was in a state or condition of being dependent on the deceased for receipt of actual material support during the deceased’s lifetime. As Samuels JA said in Ball v Newey[46] “[i]n its ordinary sense, dependency means the condition of depending on something or someone for what is needed.”
[46]Ball v Newey (1988) 13 NSWLR 489, 491 (‘Ball’).
Dependency for Accommodation
Here, the deceased resided for periods of time between 2013 and 2015 in the residence that then belonged to the plaintiff and his wife. The plaintiff gives no evidence of any other episode of common residence.
The question of the ownership of the residence and who is ‘providing’ the accommodation, alongside other financial aspects of a cohabitation, may be relevant in some cases to determining whether or not membership of a ‘household’ existed within the meaning of paragraph (k) of the definition of eligible person.[47]
[47]Re Meuleman (n 30), [38]-[41].
In this part of this judgment, I am discussing the ownership of the residence only in respect to the question of dependency under s 91(2)(b) of the Act. For the purposes of dependency, reliance on the deceased for accommodation may amount to dependence, but the mere fact of lodging in another’s property without paying rent, or living together in co-owned property, does not necessarily amount to dependence.[48] Dependency for accommodation may arise where a plaintiff is invited or permitted into residence that is not legally owned by a deceased, where it is established on the facts that it was the deceased decided who lived in the residence.[49] Two persons in an intimate sexual relationship who pooled their income to obtain mortgage finance to purchase a common residence, where neither person was able to obtain finance separately, were ‘mutually dependent’ on each other, so that the survivor was able to claim family provision as a member of the household who was wholly or partially dependent on the deceased partner.[50] That is, a dependent may be actively providing financial support to the person on whom they depend for their own needs.
[48] Tobin (n 43), [109-1]; McKenzie v Baddeley[1991] NSWCA 197, [13].
[49]Spata (n 33), [66]
[50]Ball (n 46).
The plaintiff was not provided with accommodation by the deceased at any time. Their period of cohabitation occurred in a residence that belonged to the plaintiff and his wife so that, during this period, the deceased was dependent on the plaintiff and his wife for her accommodation.
The “agreement” or “arrangement” to give the plaintiff a house if he supervised building works at the deceased’s properties
While the deceased in this case told the plaintiff and his neighbour that she would provide for the plaintiff under her will, the plaintiff quite rightly does not seek to rely on such statements for the purposes of establishing dependency. Promises of future provision from the estate are incapable of creating a dependency ‘on the deceased’ during the lifetime of the deceased, which is the relevant time for s 91(2)(b) of the Act.[51]
[51]Veniou (n 2), [54]; Re Meuleman (n 30), [79]-[84]
However, the plaintiff does seek to rely on the deceased telling him that she would give him one of her houses when she requested him to delay his own renovations and to assist her over a number of years with extensive building works at various of her properties. A promise, agreement or arrangement for the giving of a benefit made by a deceased person during their lifetime may be enforceable as a proprietary estoppel, promissory estoppel, constructive trust, contract or otherwise, depending on all the facts and circumstances.[52] However, there is no overlap between the circumstances where equity will intervene to transfer ownership of property or where a binding contract has come into being and dependency under s 91(2)(b) of the Act. These are entirely separate concepts.
[52]Veniou (n 2), [54]; Re Meuleman (n 30), [80-1].
The impact of unfulfilled promises or disappointed expectations may sometimes be relevant when a family provision claim reaches the stage that the moral duty of the deceased is under consideration[53], but that is not the case here, as this judgment remains at the preliminary stage of considering dependency. That is, if the plaintiff were an adult child with a family provision claim, where eligibility and dependency are not in issue, it may in certain circumstances be appropriate to allow an opportunity to add an aligned equitable claim to the proceedings.[54] However, as this plaintiff is not a dependent, his family provision claim has no merit. It cannot be saved by the existence of a potential separate cause of action which the plaintiff has so far elected not to pursue.
[53]Re Meuleman (n 30), [83]; Vukic v Luca Grbin [2006] NSWSC 41, [38].
[54]Winter-Cooke (n 24).
It is important to note that had a house been given to the plaintiff, this would not necessarily lead to a conclusion that he was dependent on the deceased as a result of that gift. Dependency does not arise where a gift, even a significant gift or even regular gifts, are given during the lifetime of the deceased.[55] Dependency is a different relationship to that of gift giving, although gift giving may coincide with dependency.
[55]MacEwan Shaw v Shaw (2003) 11 VR 95, 106.
The plaintiff also seeks to rely on the deceased reimbursing him for his personal spending on her building projects, as well as her continued promises to give him a property, to create an ‘emerging dependence’. There is no evidence that the plaintiff ever spent any of his personal funds on any of the deceased’s properties or that she reimbursed him for such expenditure. In any event, reimbursing a family member, who is voluntarily incurring expenditure on your behalf, does not create a dependence. First, it is again the plaintiff who would be providing financial benefit or practical assistance to the deceased, by way of paying for her building costs in the first instance and awaiting reimbursement. Secondly, a reimbursement process would be simply an indirect method of the deceased paying for her own building costs, without any element of support for the plaintiff on which he may come to depend.
Conclusion on Threshold Dependency
On taking into account the whole of the relationship between the plaintiff and the deceased, as set out in the plaintiff’s material, I am not satisfied that as a matter of fact that the plaintiff was ever wholly or partly dependent on the deceased for his proper maintenance and support. There is no evidence the plaintiff depended on the deceased for the total or partial satisfaction of any of his needs. The evidence supports the opposite conclusion, that the plaintiff, a younger, more able person, provided significant care and assistance to the deceased during the latter years of her life, including transport, accommodation, company and necessary work on her properties on which the deceased, then an elderly, vision-impaired, lonely widow, depended. Therefore, by s 91(2)(b) of the Act, the Court must not make a family provision order in this case. In such circumstances, this proceeding has no prospect of success and must be summarily dismissed.
Quantum Dependency
If I am wrong in my conclusion regarding the plaintiff’s dependency at any time as required by s 91(2)(b) of the Act, then an order for provision may be made for the plaintiff. However, by s 91(4)(d) of the Act, the Court, in determining the amount of any provision to be ordered for the plaintiff as ‘a member of a household’, must take into account the ‘degree’ of dependency on the deceased for ‘proper maintenance and support at the time of the deceased’s death’. Then, by s 91(5)(b) of the Act, the amount of provision which is ordered must be ‘proportionate’ to that degree of dependency. If there is no dependency at the time of death, the Court is bound to determine that there is no degree of dependency and, proportionately, no provision may be ordered. Such a claim is futile. This was the result in Veniou, Re Meuleman and Dunn.
In this case, the plaintiff had limited contact with the deceased at the time of her death. They may have only spoken to each other by telephone over the preceding months. The plaintiff lived independently in his own home and received no assistance of any description from the deceased. The plaintiff did not depend or rely on the deceased for any of his needs at the time of her death. In the absence of dependency at the time of death, pursuant to ss 91(4)(d) and (5)(b) of the Act, there is no real prospect that the plaintiff could succeed in his claim.
Conclusion
The question of whether or not the plaintiff was a member of the same household as the deceased between 2013 and 2015, is not considered in this application.
Further, the question of whether or not the plaintiff had been in the past and, at the time of the deceased’s death, would have been likely in the near future, had the deceased not died, to again become, a member of the household of which the deceased was also a member, is not considered in this application.
Summary judgment will be given on the basis that the plaintiff was not dependent on the deceased within the meaning of ss 91(2)(b) and 91(4)(d) of the Act and therefore, the Court must not make a family provision order for the plaintiff, including by s 91(5)(b) of the Act and, as a result, the proceeding has no real prospect of success.
The parties are to forward draft Orders giving effect to these reasons within 14 days of this judgment. If the parties are unable to agree, including on the question of costs, a further hearing can be arranged.
21
0