Ucchino v Evans - [2024] QDC 181

DISTRICT COURT OF QUEENSLAND

CITATION:

Ucchino & others v Evans [2024] QDC 181

PARTIES:

TRACY MICHELLE UCCHINO AS LITIGATION GUARDIAN FOR ZOE UCCHINO

(First Applicant)

And

TRACY MICHELLE UCCHINO AS LITIGATION GUARDIAN FOR ZALVATOR UCCHINO

(Second Applicant)

And

TRACY MICHELLE UCCHINO AS LITIGATION GUARDIAN FOR ZARA UCCHINO

(Third Applicant)

And

TRACY MICHELLE UCCHINO AS LITIGATION GUARDIAN FOR ZOUL UCCHINO

(Fourth Applicant)

V

MICHAEL BRETT EVANS AS EXECUTOR OF THE ESTATE OF JULIE ANN PRICE, DECEASED

(Respondent)

FILE NO/S:

2629/23

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court

DELIVERED ON:

15 August 2024 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2024 and 15 August 2024

JUDGE:

Porter KC DCJ

ORDERS:

1. THE ORIGINATING APPLICATION IS DISMISSED.

2. TRACEY MICHELLE UCCHINO PAY THE RESPONDENT’S COSTS OF THE APPLICATION AND THE ORIGINATING APPLICATION ON THE STANDARD BASIS.

CATCHWORDS:

SUCCESSION – Family provision – Eligible applicants – Dependent or other person – where the deceased was the applicants’ aunt – where the applicants’ mother, as litigation guardian, sought further provision from the deceased’s estate pursuant to s 41(1) Succession Act 1981 (Qld) – where the applicants assert they are “dependants” of the deceased under s 40(c) Succession Act 1981 (Qld) who were being “substantially maintained or supported” by the deceased at the time of death – where the executor submits “substantially” is properly construed as meaning “in the main” or “essentially” – where the applicants contend support or maintenance will be “substantial” if it is more than insubstantial, ephemeral, immaterial or intangible - where, alternatively, the applicants submit an assessment of whether an applicant is “substantially maintained or supported” can be established having regard to the qualitative effect of maintenance and support, not its quantitative amount – whether the applicants’ constructions of “substantially maintained or supported” be accepted – whether the applicants were dependants of the deceased

PROCEDURE – Civil proceedings in State and Territory courts – Ending proceedings early – Summary disposal – Summary judgment for defendant or respondent: stay or dismissal of proceedings – where the respondent executor applied for summary dismissal of the originating application – where the executor submits the applicants had no prospect of establishing they were dependants of the deceased at the date of death – where the applicants were not living with the deceased – where the primary source of support of the applicants is their mother’s salary and their father’s provision of school fees – where deceased made grace and favour contributions and discretionary one-off payments to just one of the children – where the deceased’s contributions were modest as between the individual applicants – where no arrangements for future contributions existed – where the applicants’ submission implicitly recognises that if the executor’s construction is correct the applicants have no arguable case – whether it would be an abuse of process to allow the proceedings to continue – whether the originating application should be summarily dismissed

PROCEURE – Civil proceedings in State and Territory courts – Costs – Parties and non-parties – Non-parties…

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 Ucchino v Evans

Details

AGLC: Ucchino v Evans [2024] QDC 181
Case: [2024] QDC 181
Decision Date: 15 August 2024 (ex tempore)

CaseChat Overview and Summary

The case of Ucchino v Evans involves the applicants, who are the children of the deceased's niece, seeking further provision from the estate of their deceased aunt, who was their aunt, under section 41(1) of the Succession Act 1981 (Qld). They argue that they were "dependants" of the deceased under section 40(c) of the same Act, who were being "substantially maintained or supported" by the deceased at the time of her death. The applicants contend that the support they received from the deceased was more than insubstantial, ephemeral, immaterial, or intangible, and that the qualitative effect of the maintenance and support they received can be used to determine whether they were substantially maintained or supported. The executor of the deceased's estate opposes the application and submits that the applicants have no prospect of establishing that they were dependants of the deceased at the date of her death.

The primary issue before the court was whether the applicants' construction of "substantially maintained or supported" should be accepted, and whether the applicants were dependants of the deceased. The court considered the submissions of both parties and held that the applicants' construction of "substantially maintained or supported" was not accepted. The court held that "substantially" is properly construed as meaning "in the main" or "essentially," and that the support or maintenance provided by the deceased to the applicants was not substantial as between the individual applicants. The court also held that the applicants had no prospect of establishing that they were dependants of the deceased at the date of her death.

As a result of the court's findings, the executor's application for summary dismissal of the originating application was granted, and the originating application was dismissed. The court also ordered that Tracey Michelle Ucchino, the litigation guardian for the applicants, pay the respondent's costs of the application and the originating application on the standard basis. The court found that the applicants' submission implicitly recognised that if the executor's construction was correct, they had no arguable case. The court also found that the applicants sought to develop a quite different test of "substantially maintained or supported," despite the established construction being compelling. The executor consistently gave the applicants every opportunity to understand the critique by the executor, and supplemented the failings of the applicants' solicitors in taking instructions from the first applicant, who was no longer a minor child. The executor also made various Calderbank offers.

In summary, the court held that the applicants were not dependants of the deceased, and that their construction of "substantially maintained or supported" was not accepted. The application was dismissed, and the litigation guardian was ordered to pay the respondent's costs of the application and the originating application on the standard basis.

Orders

Orders of the court

1. THE ORIGINATING APPLICATION IS DISMISSED.

2. TRACEY MICHELLE UCCHINO PAY THE RESPONDENT’S COSTS OF THE APPLICATION AND THE ORIGINATING APPLICATION ON THE STANDARD BASIS.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ucchino & others v Evans [2024] QDC 181
PARTIES:	TRACY MICHELLE UCCHINO AS LITIGATION GUARDIAN FOR ZOE UCCHINO (First Applicant) And TRACY MICHELLE UCCHINO AS LITIGATION GUARDIAN FOR ZALVATOR UCCHINO (Second Applicant) And TRACY MICHELLE UCCHINO AS LITIGATION GUARDIAN FOR ZARA UCCHINO (Third Applicant) And TRACY MICHELLE UCCHINO AS LITIGATION GUARDIAN FOR ZOUL UCCHINO (Fourth Applicant) V MICHAEL BRETT EVANS AS EXECUTOR OF THE ESTATE OF JULIE ANN PRICE, DECEASED (Respondent)
FILE NO/S:	2629/23
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court
DELIVERED ON:	15 August 2024 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	22 July 2024 and 15 August 2024
JUDGE:	Porter KC DCJ
ORDERS:	1. THE ORIGINATING APPLICATION IS DISMISSED. 2. TRACEY MICHELLE UCCHINO PAY THE RESPONDENT’S COSTS OF THE APPLICATION AND THE ORIGINATING APPLICATION ON THE STANDARD BASIS.
CATCHWORDS:	SUCCESSION – Family provision – Eligible applicants – Dependent or other person – where the deceased was the applicants’ aunt – where the applicants’ mother, as litigation guardian, sought further provision from the deceased’s estate pursuant to s 41(1) Succession Act 1981 (Qld) – where the applicants assert they are “dependants” of the deceased under s 40(c) Succession Act 1981 (Qld) who were being “substantially maintained or supported” by the deceased at the time of death – where the executor submits “substantially” is properly construed as meaning “in the main” or “essentially” – where the applicants contend support or maintenance will be “substantial” if it is more than insubstantial, ephemeral, immaterial or intangible - where, alternatively, the applicants submit an assessment of whether an applicant is “substantially maintained or supported” can be established having regard to the qualitative effect of maintenance and support, not its quantitative amount – whether the applicants’ constructions of “substantially maintained or supported” be accepted – whether the applicants were dependants of the deceased PROCEDURE – Civil proceedings in State and Territory courts – Ending proceedings early – Summary disposal – Summary judgment for defendant or respondent: stay or dismissal of proceedings – where the respondent executor applied for summary dismissal of the originating application – where the executor submits the applicants had no prospect of establishing they were dependants of the deceased at the date of death – where the applicants were not living with the deceased – where the primary source of support of the applicants is their mother’s salary and their father’s provision of school fees – where deceased made grace and favour contributions and discretionary one-off payments to just one of the children – where the deceased’s contributions were modest as between the individual applicants – where no arrangements for future contributions existed – where the applicants’ submission implicitly recognises that if the executor’s construction is correct the applicants have no arguable case – whether it would be an abuse of process to allow the proceedings to continue – whether the originating application should be summarily dismissed PROCEURE – Civil proceedings in State and Territory courts – Costs – Parties and non-parties – Non-parties…