Story v Semmens

[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…