Veniou v Equity Trustees Limited - [2018] VSC 832

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2018 01509

EFFROSYNI VENIOU	Plaintiff
v
EQUITY TRUSTEES LIMITED (who is sued in their capacity as Executors of the Will of ROSEMARY FLORENCE BARTON, deceased)	Defendant

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2018
DATE OF JUDGMENT:	8 November 2018 Revised 9 October 2019
CASE MAY BE CITED AS:	Veniou v Equity Trustees Limited
MEDIUM NEUTRAL CITATION:	[2018] VSC 832

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FAMILY PROVISION – Plaintiff a grandchild of the deceased – Plaintiff’s mother, the child of the deceased, predeceased the deceased - Deceased made representation to the plaintiff at that time that she would take care of her in her will – No such provision made – Plaintiff believed that she would receive her late mother’s share of the deceased’s estate – Defendant seeks summary dismissal on basis that the applicant has no real prospect of success of showing that she was ‘wholly or partly dependent’ on the deceased – Meaning of ‘dependent’ – Held: dependence requires the actual receipt of material aid – Summary judgment granted and proceeding dismissed – Administration and Probate Act 1958 (Vic) ss 90, 91(2)(b), 91(4) and 91(5).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Gillies	Rigoli Lawyers
For the Defendant	Ms E L Coates	Russell Kennedy

TABLE OF CONTENTS

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

Facts....................................................................................................................................................... 1

Legal principles.................................................................................................................................. 5

Application for summary dismissal.......................................................................................... 5
Claim for family provision.......................................................................................................... 6

Submissions...................................................................................................................................... 11

Defendant..................................................................................................................................... 11
Plaintiff......................................................................................................................................... 12

Discussion.......................................................................................................................................... 13

Dependency................................................................................................................................. 14
Textual analysis................................................................................................................. 14
Extrinsic materials............................................................................................................. 17
Relevance of New South Wales cases............................................................................ 19
Victorian cases................................................................................................................... 23
Application of conclusions on dependency to the facts.............................................. 26

Relevance of plaintiff’s evidence to other requirements of the Act.................................... 28
Conclusion on prospects of success......................................................................................... 30
Discretion to refuse summary judgment................................................................................. 31

Costs.................................................................................................................................................... 32

HER HONOUR:

Introduction

These are the elaborated written reasons for my dismissal of the plaintiff’s application for family provision from the estate of her late grandmother, Rosemary Barton. The plaintiff commenced her application by originating motion filed on 24 April 2018. The defendant executor made application for summary dismissal by summons filed 24 August 2018. I heard the executor’s application on 8 November 2018 and granted it on that day, giving brief oral reasons. In short, I did not consider that the plaintiff had any real prospect of success in establishing that she had been ‘wholly or partly dependent’ on her grandmother for her ‘proper maintenance and support’ as required by s 91(2)(b) of the Administration and Probate Act 1958 (Vic) (‘the Act’). It follows that the Court would be prohibited by s 91(2) from making any family provision order in her favour, notwithstanding that as a grandchild she qualifies as an ‘eligible person’ to make application for family provision from her grandmother’s estate.

In these written reasons I elaborate my discussion of the evidence and I give detailed reasons for my conclusion as to the proper construction of the requirement of dependency in the Act,…

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.

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Details

Case: [2018] VSC 832
Decision Date: 8 November 2018 Revised 9 October 2019

CaseChat Overview and Summary

In the case of Veniou v Equity Trustees Limited, the plaintiff sought relief under the Family Provision Act, claiming she was not adequately provided for by the will of the deceased, her grandfather. The plaintiff, who was the grandchild of the deceased, alleged that her mother, the deceased’s child, predeceased him, and at that time, the deceased made a representation to her that he would take care of her in his will. However, no such provision was made in the will, and the plaintiff believed she would receive her late mother’s share of the estate. The defendant sought summary dismissal, arguing that the plaintiff had no real prospect of showing that she was wholly or partly dependent on the deceased.

The central legal issue before the court was the interpretation of the term ‘dependent’ under the relevant statutory provisions, particularly whether it required the actual receipt of material aid. The court had to determine whether the plaintiff’s expectation of receiving her mother’s share of the estate constituted a dependency on the deceased, thereby justifying her claim under the Family Provision Act. Additionally, the court examined whether the plaintiff had a real prospect of success in her claim.

The court found that for a person to be considered dependent on the deceased for the purposes of the Family Provision Act, there must be an actual receipt of material aid from the deceased. The court held that the plaintiff’s expectation of receiving her mother’s share of the estate did not amount to actual receipt of material aid. Consequently, the court granted the defendant's application for summary judgment and dismissed the proceeding, concluding that the plaintiff did not meet the statutory criteria for dependency.

No specific final orders are mentioned in the text, but it is implicit that the proceeding was dismissed with the plaintiff bearing the costs of the application.

Orders