Story v Semmens

Case [2011] VSC 305


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2010 6650

IN THE MATTER of the estate of Violet May Semmens (deceased)

MEGAN STORY Plaintiff
v
JOHN CHRISTOPHER SEMMENS and
JANET HELEN WYLE
Defendants

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JUDGE:

ZAMMIT AsJ

WHERE HELD:

Melbourne

DATE OF HEARING:

6 June 2011

DATE OF JUDGMENT:

1 July 2011

CASE MAY BE CITED AS:

Story v Semmens and Anor

MEDIUM NEUTRAL CITATION:

[2011] VSC 305

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ADMINISTRATION AND PROBATE – Testator’s family maintenance – Deceased a widower with two adult children – Claim by grandchild – No dispute on the claimant’s evidence - Whether deceased therefore had responsibility to make provision – Whether claim has ‘no real prospect of success’ – Whether appropriate for summary dismissal – Administration and Probate Act 1958, s 91 – Civil Procedure Act 2010 (No 47), Part 4.4

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr R. Wells Maddens Solicitors
For the Defendants Mr S. Pitt William Murray Solicitors

HER HONOUR:

Introduction

  1. This is an application by the defendants, the executors of the estate of Violet May Semmens (Violet), for summary judgment.

  1. The defendants’ summary judgment application is pursuant to s 62 of the Civil Procedure Act 2010 (Vic) (CPA) and Rule 23.01 of the Supreme Court Rules.

  1. To avoid confusion I will refer to the parties by their first names.

  1. By originating motion dated 10 December 2010, Megan Story (Megan) seeks an order that provision be made for her proper maintenance and support out of Violet’s estate. Megan claims that she is a person for whom Violet had a responsibility within the meaning of s 91 of the Administration & Probate Act 1958 (Vic) (the Act).

  1. Violet is Megan’s grandmother. Violet died on 10 April 2010.

  1. The defendants, John Christopher Semmens (John) and Janet Helen Wile (Janet) are Violet’s surviving children. Violet’s third child Barbara Dawn Story, is Megan’s mother.  Barbara predeceased Violet.

  1. Barbara had four children. Megan’s siblings do not make a claim on Violet’s estate.

  1. Megan filed an affidavit sworn 27 April 2011 in support of her claim.  Megan does not submit that there are more facts to be adduced by affidavit.  Megan is legally represented. Her affidavit in effect contains the entire facts that Megan relies upon to make this claim at trial.

  1. The defendants do not dispute the facts as deposed to in Megan’s affidavit.

Summary judgment – the test

  1. During submissions, I queried whether the summary judgment provisions contained in Part 4.4 of the CPA applied to this application. Having had the benefit of reviewing submissions from both parties, I am satisfied that s 62 of the CPA applies.

  1. The test adopted in the CPA is similar to the tests adopted in the Federal Court[1] and in the United Kingdom.

    [1]Section 31A of the Federal Court of Australia Act 1976.

  1. Foster J, in Wang v Anying Group Pty Ltd[2] summarised the principles applicable to s 31A of the Federal Court of Australia Act 1976:

The critical words…

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Story v Semmens [2011] VSC 305
Case
[2011] VSC 305
Decision Date

CaseChat Overview and Summary

Story v Semmens involves a dispute regarding family maintenance claims under the Administration and Probate Act 1958. The deceased, a widower, left behind two adult children and a grandchild, the latter bringing the claim. The defendants, as executors of the deceased's estate, sought summary judgment on the basis that the claim had no real prospect of success. They argued that since there was no dispute that the deceased had a responsibility to make provision for the grandchild, the claim should be dismissed. The case was heard in the Supreme Court of Victoria, which was tasked with determining whether the claim was indeed without merit and whether summary dismissal was appropriate.

The legal issues before the court centred on the interpretation of the statutory provision concerning family maintenance claims and the criteria for summary judgment under the Civil Procedure Act 2010. Specifically, the court had to consider whether the claim had no real prospect of success and if it was appropriate to grant summary judgment. The court also needed to interpret the meaning of "responsibility to make provision" in the context of the deceased's relationship with the grandchild.

The court found that the claim did not lack a real prospect of success, as there was no dispute regarding the deceased's responsibility to provide for the grandchild. The court held that the nature of the relationship and the undisputed evidence provided by the grandchild indicated a clear responsibility on the deceased's part. Consequently, the court concluded that it was not appropriate to grant summary judgment. The defendants' application for summary judgment was dismissed, leaving the claim to proceed to a full hearing.

In dismissing the application for summary judgment, the court ordered that the matter would continue to be heard on its merits, allowing the grandchild's claim for family maintenance to be fully examined. The court's decision underscored the importance of considering the specific circumstances of each case when evaluating the prospects of success for family maintenance claims.

Orders

Orders of the court

I dismiss the defendants’ application for summary judgment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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