Veniou v Equity Trustees Limited
[2018] VSC 832
•8 November 2018 Revised 9 October 2019
| 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, as I flagged I would do. I also touch briefly on other aspects of the evidence and the parties’ submissions which I did not address in my oral reasons. I apologise for the delay in the provision of these elaborated written reasons.
Facts
The account I now set out is drawn from the evidence of the plaintiff. The defendant agrees that for the purposes of its application the plaintiff’s evidence is to be accepted and is to be taken at its highest. The plaintiff’s evidence is set out in two affidavits, the first filed shortly after her application, and the second filed after she was on notice that this application would be brought. The defendant did not file any evidence in this application.
Rosemary Barton (‘the deceased’) died on 1 July 2017, leaving a will executed on 25 March 2009 (‘the Will’). The defendant is the executor under the Will and obtained a grant of probate on 25 October 2017. As at the date of the inventory prepared for the grant of probate the value of the estate was slightly over $2 million and was comprised principally of the deceased’s former home. No provision was made for the plaintiff in the Will.
The deceased had three children, including the mother of the plaintiff, who sadly died when the plaintiff was 16 years old and so pre‑deceased her own mother. The plaintiff is one of two children of her mother who was in turn the child of the deceased.
The Will leaves a small legacy of $10,000 to each of the deceased’s other grandchildren, two other small legacies to institutions and the residue to her two surviving children, the plaintiff’s aunt and uncle. In two earlier wills, dated 21 August 2003 and 14 November 2007, the plaintiff and her brother were each also left a small legacy. The plaintiff has informed the Court that she seeks one‑third of the estate, representing her mother’s share.
The plaintiff was born on 11 April 1979. Her brother was born on 4 November 1983. Their father is Greek and as children they lived with their parents in Ios Cyclades, Greece where their parents ran a tourist business. The plaintiff’s evidence is that her relationship with her grandmother, the deceased, was excellent until her mother died. Prior to that time, the plaintiff’s grandmother visited them often, staying with them for approximately a month in either Athens or Ios. They wrote to each other ‘a lot’ and the plaintiff and apparently one or more members of her family visited the deceased in Melbourne when she was 14, staying with her for a month. [1]
[1]Affidavit of Effrosyni Veniou, sworn 6 June 2018 (‘First Affidavit’), [12].
When the plaintiff’s mother became ill with leukaemia, the deceased came to Athens with the plaintiff’s aunt and stayed with the plaintiff’s family to visit the plaintiff’s mother. Later, the plaintiff’s mother went back to Australia in the hope of obtaining a bone marrow transplant from her brother. The plaintiff and her brother also travelled to Australia to be with their mother, staying at the deceased’s home, but their mother sadly died shortly thereafter. The plaintiff remained at her grandmother’s home for a month after her mother’s death, making her total stay with her grandmother during the time of her mother’s illness and death approximately one and a half months.[2]
[2]Ibid [13] and Affidavit of Effrosyni Veniou ,sworn 7 August 2018 (‘Second Affidavit’), [5].
In the period after her mother’s death the deceased gave the plaintiff a card from Equity Trustees (i.e. the defendant). The plaintiff accompanied her grandmother to the offices of Equity Trustees at that time for an appointment.[3] The plaintiff gives two slightly different accounts of what her grandmother said to her at this time. In her First Affidavit she deposes that her grandmother told her when giving her the card ‘that if I was ever in need to contact Equity Trustees’.[4] In her Second Affidavit she deposes that her grandmother said when giving her the card that ‘I should get in touch with them if I had any needs in the future in regard to her Estate, which I took to mean after my Grandmother’s death’.[5] For the purposes of this application, I accept the second account, which contains reference to the deceased’s estate, and so relates to provision after her death.
[3]First Affidavit [14].
[4]Ibid.
[5]Second Affidavit [6].
The plaintiff elaborates in her Second Affidavit that from her discussions with her grandmother during this period, ‘I understood that she would take care for me and that is why she gave me the card from Equity Trustees.’ She adds ‘I had understood that my Grandmother would provide for me and my brother upon her death. That she did and so intended was reflected in previous Wills but not her final Will’. [6]
[6]Second Affidavit [5].
The plaintiff adds one further matter in relation to dependence on her grandmother in this Second Affidavit. That is that she had ‘always understood’ from ‘discussions within the family’ that she would receive a benefit in the deceased’s will representing the share her mother would have received had she survived the deceased.[7]
[7]Second Affidavit [4].
I accept that the relationship between the plaintiff and her grandmother was close until her mother’s death. I will return to the matters on which the plaintiff relies to show dependence, and any significance of the period during which the plaintiff stayed with her grandmother after her mother’s death (to which counsel for the plaintiff did not refer), later in these reasons.
Unfortunately, after the plaintiff returned to Greece the relationship became less close. The plaintiff says that her grandmother ‘started to become gradually estranged from us’. The plaintiff last saw her grandmother in 1995 after her mother’s death, that is, 22 years before the deceased’s own death. The plaintiff deposes that her grandmother wrote ‘some letters to me and she spoke to me over the telephone on some occasions’.[8] The plaintiff deposes that they communicated by letter until 2003 and had a long telephone call in 2001. The deceased invited the plaintiff to visit Australia in 2004 and stay with her, and offered to pay for her ticket, but the plaintiff declined as she had just started work.
[8] First Affidavit [15].
The plaintiff, or members of her family (her affidavit speaks only of ‘we’), were contacted by her aunt in 2009 with a request of photographs for her grandmother’s 90th birthday. She deposes that prior to that time her aunt and uncle (I take these to be her late mother’s siblings i.e. the deceased’s other children) had ‘kept silent apart from a few emails in 2008’.[9] The plaintiff deposes that she, or other members of her family, did supply photographs and her brother visited the deceased in 2015.
[9]First Affidavit [16].
The plaintiff deposes that her grandmother’s last contact with either her or her natal family (her evidence is unclear as to whether the request was made to her personally) was a request that the plaintiff’s late mother’s ashes be moved to the deceased’s house, which was not made directly but by Equity Trustees on her behalf. The plaintiff does not say when this request was made, but it would seem from the sequence of events she recounts to be at some point after her last direct personal contact with her grandmother in 2004. The plaintiff, or her natal family (she speaks of ‘we’ in her affidavit) was unable to comply as it seems the ashes had been placed somewhere else.
The plaintiff deposes that she has tertiary qualifications in translating and interpreting (from Bradford University) and a Master’s degree in International Business and Management (from Oxford University). She is in poor financial circumstances. Following the economic downturn in Greece she moved to France for work, but as at the date of her Second Affidavit, she had been recently retrenched from her employment there. She is not married and has no savings, and suffers from some health issues.
Legal principles
Application for summary dismissal
The defendants seek that the plaintiff’s claim be dismissed under s 63 the Civil Procedure Act 2010 (Vic) (‘CPA’) on the basis that it has no real prospect of success.
Sections 63 and 64 of the CPA provide as follows:
63 Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a)on the application of a plaintiff in a civil proceeding;
(b)on the application of a defendant in a civil proceeding;
(c)on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
64 Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(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.
In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [10] the Court of Appeal held that ‘real’ in the phrase ‘no real prospect of success’ is to be compared with a ‘fanciful’ prospect of success. The Court emphasised that caution is required before dismissing a proceeding summarily.[11] As set out above, the CPA expressly preserves in s 64 the Court’s discretion to allow a matter to proceed to trial on either of the two grounds there set out notwithstanding that the Court is of the opinion that there is no real prospect of success.
[10](2013) 42 VR 27.
[11]Ibid 40 (Warren CJ and Nettle JA (as he then was)).
Claim for family provision
In this portion of my written reasons I first set out, in a more formal and detailed way than in the oral reasons, my analysis of the Act. I then incorporate the brief observations on the Act I made in my oral reasons, which are consistent with this more elaborated analysis.
The plaintiff’s claim is brought under s 90A of the Act. That section provides as follows:
90A Eligible person may apply for family provision order
(1)Subject to subsection (2), an application for a family provision order may be made to the Court by, or on behalf of, an eligible person.
(2)An application under subsection (1) must be made—
(a)within the time specified in section 99; and
(b)otherwise in accordance with this Part and the Rules.
The plaintiff submits that she is an ‘eligible person’ within the meaning of s 90A. ‘Eligible person’ is defined in the preceding section, s 90, to mean persons in specific categories, generally categories of relationship or connection to the deceased. It is apparent both from the restrictions placed by s 91 of the Act on the Court’s power to make an order in respect of certain eligible persons, and from additional requirements for some categories within the definition of ‘eligible person’ itself, that the categories are in a hierarchy.[12] The hierarchy commences with persons who do not need to establish any prerequisite to their eligibility other than the bare relationship (such as a spouse or domestic partner of the deceased at the time of the deceased’s death, or minor child of the deceased), and continues to other categories of persons who do need to establish other necessary prerequisites.
[12]Bail v Scott-Mackenzie [2016] VSC 563, [50].
This approach to family provision was introduced into law by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) (‘2014 amendments’). It was a major departure from the immediately preceding approach to family provision, which did not require an applicant to be in any specific category of relationship or connection to the deceased, and under which the primary requirement for an order was that the applicant was a person ‘for whom the deceased had a responsibility to make provision’.[13] In Bail v Scott-Mackenzie,[14] Associate Justice Derham helpfully sets out a history of family provision legislation in Victoria, which shows the adoption of category based, and non-category based, criteria for eligibility at different points in time, and the reasons advanced therefore, culminating in the 2014 amendments. The 2014 amendments apply to claims in respect of deaths after 1 January 2015 and so apply to the plaintiff’s claim.
[13]Section 91(1) of the Act prior to the 2014 amendments.
[14]Bail (n 13) [56]-[71].
The plaintiff contends that she is an ‘eligible person’ within paragraph (i) of the definition in s 90 which provides as follows:
eligible person means—
…
(i) a grandchild of the deceased;
Section 91 of the Act confers jurisdiction on the Court to make an order for provision from the estate of a deceased person in favour of an ‘eligible person’, including a grandchild. It provides as follows:
91 Court may make family provision order
(1)Despite anything to the contrary in this Act, on an application under section 90A, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person.
(2)The Court must not make a family provision order under subsection (1) unless satisfied—
(a)that the person is an eligible person; and
(b)in the case of a person referred to in paragraphs (h) to (k) of the definition of eligible person, that the person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support; and
(c)that, at the time of death, the deceased had a moral duty to provide for the eligible person's proper maintenance and support; and
(d)that the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person, whether by—
(i)the deceased's will (if any); or
(ii)the operation of Part IA; or
(iii)both the will and the operation of Part IA.
(3)For the purposes of subsection (2)(b), the Court must disregard any means-tested government benefits that the eligible person has received or is eligible to receive.
(4)In determining the amount of provision to be made by a family provision order, if any, the Court must take into account—
(a)the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and
(b)the degree to which the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person; and
c)in the case of an eligible person referred to in paragraph (f) or (g) of the definition of eligible person, the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person's proper maintenance and support; and
(d)in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of eligible person, the degree to which the eligible person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support at the time of the deceased's death.
(5)The amount of provision made by a family provision order—
(a)must not provide for an amount greater than is necessary for the eligible person's proper maintenance and support; and
(b)in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of eligible person, must be proportionate to the eligible person's degree of dependency on the deceased for the person's proper maintenance and support at the time of the deceased's death.
I analyse s 91 as follows. Section 91(1) confers power on the Court to make an order for provision from the estate of a deceased person in favour of an eligible applicant. Pursuant to s 91(2), however, the power conferred by s 91(1) is enlivened only if the claimant is not only an eligible person, but further that, in respect of all categories of eligible persons, the deceased had at the time of her death a moral duty to provide for the claimant’s ‘proper maintenance and support’, and the distribution of the deceased’s estate fails to make that provision. In the case of certain categories of eligible persons, including a grandchild, the Court’s power to make an order for provision is subject to the further restriction, that the claimant must show that she was ‘wholly or partly dependent on the deceased’ for her ‘proper maintenance and support’.
Sub-sections 4 and 5 of s 91 imposes further restrictions, by way of matters that the Court must consider in relation to the amount of any order for provision, if the preceding sub-sections are satisfied so as to enliven the Court’s jurisdiction. Paragraphs (a), (b) and (d) of s 91(4) require the Court to consider the degree to which the restrictions in s 91(2) are satisfied, in the case of moral duty and dependency as at the date of the deceased’s death. Section 91(4)(c) adds a restriction in relation to children who are not minors, in full time study under the age of 25 years or suffering a disability. Paragraph (b) of s 91(5) relates to an eligible person who is a grandchild, and requires the Court to only order an amount of provision that is proportionate to the grandchild’s degree of dependence on the deceased for her proper maintenance and support as at the time of the deceased’s death.
The requirement for a grandchild to show dependency appears in both s 91(2) and in s 91(4), but there is a significant temporal difference. The prohibition on making any order in s 91(2)(b) unless dependency is shown does not require dependency as at the date of the deceased’s death. This differs from s 91(2)(c), relating to moral duty, which prohibits an order unless the deceased had a moral duty to provide for the eligible person at the time of death. If the dependency requirement in s 91(2)(b) is satisfied then, pursuant to s 91(4)(d) and s 91(5)(b), the Court must consider when determining the amount of any order, amongst other matters, the degree to which the applicant grandchild was so dependent for her proper maintenance and support at the time of the deceased’s death. In other words, a grandchild may be able to establish dependency for the purposes of s 91(2) but fail to show any dependency as at the date of the deceased’s death, in which case the quantum the Court could order may be nil.
The criteria that the Court must or may consider in relation to making any family provision order are further set out in s 91A. The permissive criteria are found in s 91A(2) and include, by paragraph (i), whether the eligible person was being maintained, wholly or partly, by the deceased before the deceased’s death, and the extent to which and the basis on which she was being so maintained. This paragraph refers to maintenance, as opposed to dependency. I do not, however, consider this difference further as no submissions were made about the potential difference between those two concepts. The criteria in s 91A are generally regarded as being relevant at the discretionary stage of the Court’s consideration, once the jurisdictional requirements of s 91 have been met.
In my oral reasons, I observed that the requirements under the Act can be viewed as applying at three stages. I now repeat those observations, either verbatim or summarised given my now elaborated discussion of the Act.
The first stage is eligibility. Eligibility is now determined by category, and a grandchild is within those categories.
The second stage relates to the power of the Court to make an order. Section 91 of the Act confers the power on the Court to make an order for provision, or further provision. However, that power is limited by s 91(2) which provides that the Court must not make a family provision order unless satisfied of various matters. Most of those matters apply to an applicant in any category of eligible person, but paragraph (b) of s 91(2) applies only to certain categories, which include the category of grandchild. That additional requirement which applies here, as it applies to the plaintiff, is that the plaintiff was wholly or partly dependent on the deceased for her proper maintenance and support.
I also noted in my oral reasons that amongst other matters, the applicant would also have to satisfy the Court before the Court could make an order that at the time of her death the deceased had a moral duty to provide for the plaintiff’s proper maintenance and support.
The third stage relates to the amount of any order. This is provided for in s 91(4) of the Act which sets out the matters that the Court must take into account in determining the amount of provision to be made, if it is possible to make an order. I noted in my oral reasons by way of example, s 91(4)(a), which applies to all categories and provides that the Court must take into account the degree to which at the time of death the deceased had a moral duty to provide for the eligible person. I also noted that s 91(4)(d) requires the Court to consider the degree to which, here, the plaintiff was wholly or partly dependent on the deceased for her proper maintenance and support at the time of the deceased’s death. I would now add to those observations my brief discussion of s 91A above.
Submissions
Defendant
The defendant submits that the plaintiff has no real prospect of success primarily on the basis that her evidence does not show that she was wholly or partly dependent on the deceased for her proper maintenance and support and so she fails at the ‘threshold level and is not eligible to bring a claim’.[15] The defendant draws support for this proposition from a number of New South Wales authorities.
[15] Equity Trustees Limited, ‘Defendant’s Submissions’, Submission in Veniou v Equity Trustees Limited, S CI 2018 01509, 15 October 2018 (‘Defendant’s Submissions’), [36].
In the alternative, the defendant submits that ‘if it is found that the plaintiff is an eligible person and dependence is not a threshold issue’ then the amount of any provision that the Court would order would be nil, due to the requirements of ss 91(4) and (5).[16]
[16]Ibid [38].
The defendant submits that the requirement in the Act that an eligible person in certain categories was wholly or partly ‘dependent’ on the deceased must be read having regard to whole phrase in which the requirement appears in the Act. The whole phrase includes the need met by the dependence. The Act requires dependence for the eligible person’s ‘proper maintenance and support’. Having regard to that context, the defendant contends that what is required is material assistance of some kind. Not necessarily financial, but material, as opposed to a mere expectation of inheritance.
The defendant also disputes that the deceased had a moral duty to provide for the plaintiff at the time of her death.[17]
[17]Ibid [39].
Plaintiff
The plaintiff submits that she is an eligible person, as a grandchild of the deceased, and relies on observations made in other cases where summary judgment was sought that the ‘second level of mandatory factors’ set out in ss 91(2)(b)-(d) (which include the requirement in the case of a grandchild of dependency) ‘will usually require a trial’.[18]
[18]Effrosyni Veniou, Plaintiff’s Outline of Submissions, Submission in Veniou v Equity Trustees Limited, S CI 2018 01509, 29 October 2018 (‘Plaintiff’s Submissions’), [11] referring to Innes Irons and anor v Forrest [2016] VSC 782, [38]-[39]. Derham AsJ made similar comments in his earlier decision Bail v Scott-Mackenzie [2016] VSC 563, [42]. Both of those cases concerned applicants who relied on being in a child related category of eligibility.
In relation to the meaning of ‘dependent’, the plaintiff notes that the word is not defined in the Act and submits that it should be given its widest possible meaning, given the remedial or beneficial nature of the Act. In the plaintiff’s submission, the word ‘dependent’ does not require that she received any material assistance from her grandmother, let alone actual financial dependence on her grandmother at the date of the grandmother’s death.[19] The plaintiff submits that ‘dependence’ can mean dependence on an event occurring, and thus it is sufficient that the plaintiff had ‘an expectation or belief that she would be taken care of based on what her Grandmother said to her after her Mother died’.[20] The plaintiff submits that reliance on that representation was reasonable in light of its content and the time at which it was made.
[19]Plaintiff’s Submissions [18].
[20]Ibid [21].
In oral submissions, counsel for the plaintiff submitted that, amongst other factors, the absence of existing Victorian authority on the meaning of ‘dependent’ under the 2014 amendments was a reason why in the Court’s discretion summary judgment should be refused, to enable authoritative determination at trial.
Discussion
If by reference to the plaintiff not being ‘eligible’ for want of dependency on the deceased, the defendant disputes that the plaintiff is an eligible person within the meaning of the Act, I consider that the defendant puts its primary argument too high. It is not disputed that she is a grandchild of the deceased. Paragraph (i) within the definition of ‘eligible person’ in s 90 does not require anything more. If, however, the defendant’s primary submission is intended to turn on the absence of dependency as an additional requirement to enliven the Court’s jurisdiction, then I consider it correct.
In my oral reasons I identified the meaning of ‘dependent’ at the second and third stages described above as the central issue. I will set out my discussion on that topic shortly. I did not, in my oral reasons, address the alternative submission put by the defendant. This was that even if the plaintiff should be seen as having a real, as opposed to fanciful, prospect of establishing that she was at some point partly dependent on the deceased, the amount the Court would be able to order would be nil in the absence of any dependency on the deceased at the time of the deceased’s death. Nor did I address the issue of moral duty. In these elaborated reasons, I discuss both these additional matters which I consider add force to my conclusion that the plaintiff has no real prospect of success.
Neither counsel were able to find any Victorian authority on the meaning of ‘dependent’ in the 2014 amendments as at the date of the hearing, and Court researchers have not been able to identify any authority subsequent to that date. The defendant has taken me to a number of New South Wales cases. In the absence of any Victorian authority, the discussion of the meaning of ‘dependent’ in the New South Wales legislation in those cases is worthy of consideration, provided caution is exercised as in the New South Wales legislation dependency is an element of being within certain categories of eligible person, as opposed to an additional requirement for certain categories of eligible persons as in Victoria.
Dependency
In my oral reasons I stated that I preferred the construction of ‘dependent’ advanced by the defendant, and would elaborate that in my written reasons. I now do so.
The key difference between the competing constructions advanced by the defendant and the plaintiff is whether whole or partial dependence requires the actual receipt by the eligible person of material aid prior to the death of the deceased. In answering that question, I gratefully adopt the observations of Derham AsJ in Bail v Scott-Mackenzie, as to the approach to be taken to determining the meaning of a word or expression in an Act.[21]
[21](n 13) [39]-[41]; [76]-[79].
Textual analysis
The starting point is textual analysis of the word in its context, aided by dictionary definitions if the word is not defined in the statute. ‘Dependent’ is not defined in the Act to give it any special meaning, and so I begin with the dictionary definitions on which each party relies. The defendant relies on definitions in the Oxford English Dictionary, Collins Dictionary, Cambridge English dictionary and Merriam-Webster dictionary, all of which, so the defendant submits suggest a current dependence, as opposed to an expectation of assistance in the future. For example, the definition cited from the Oxford English Dictionary is ‘requiring someone or something for financial or other support’ and that cited from the Cambridge English Dictionary is ‘needing the support of something or someone in order to continue existing or operating’. [22]
[22]Defendant’s Submissions [49].
The plaintiff prefers the meaning given by the Macquarie Dictionary, cited as ‘depending on something else for aid, support etc’. Counsel for the plaintiff submits that the plaintiff ‘depends on the deceased for aid’. [23]
[23]Plaintiff’s Submissions [18].
In my view, there is little real difference between the various dictionary definitions put forward in relation to the temporal requirement of being ‘dependent’. I consider that the use of the present tense in all the proposed definitions assumes a current state of dependence, not a future state. The Act in turn specifies the point at which that current state of dependence is required. In s 91(2)(b) no particular point in time is specified. The fact that the deceased has died necessarily means that the dependence must have been before her death, but as no particular point in time is specified I proceed on the basis that whole or partial dependence at any point in time prior to that death is sufficient for that paragraph. In s 91(4)(d) by contrast, the dependence must have been at the time of the deceased’s death.
If it were necessary in this case to give a definitive answer as to whether emotional support could suffice for dependence, for the purposes of the Act, I would not consider that the dictionary definitions necessarily give that answer. It could be said, for example, that non material or emotional assistance could fall within the word ‘support’, or be necessary, in the case of an individual, for that individual to ’continue existing or operating’. The plaintiff does not rely on emotional support, but rather the representation that material support would be provided after the deceased’s death.
The plaintiff submits that the widest possible construction should be given to the requirement of dependence given that the legislation is beneficial or remedial.[24] A similar submission was put to the Court of Appeal in Popple v Rowe and others.[25] Eligibility for an order at that time was also category based, being limited at that time to the widow, widower or children of the deceased. The case concerned whether a stepchild of the deceased was included within the category of child of the deceased. The Court on appeal answered in the negative. Winneke P accepted that the legislation is remedial, but held that the consequence was that:
the court should be liberal in the exercise of its powers once it determines to exercise the jurisdiction it has in favour of an eligible applicant. It cannot mean, in my opinion, that it is to be benevolent in its interpretation of those who are or may be eligible to make application.[26]
[24]Ibid [14].
[25][1998] 1 VR 651.
[26]Ibid 659. See also to the same effect Brooking JA 657.
In my view, the submission should be met with the same result in this case. Although the plaintiff as a grandchild is an eligible person, the Court is prohibited from making an order in her favour unless she can establish dependency on the deceased. Whether that requirement is regarded as jurisdictional in the strict sense, or a second level of mandatory requirement, it is on either view a threshold requirement before the Court may exercise its jurisdiction. I consider that in accordance with Popple v Rowe the Court is not permitted to give a wider meaning than the usual rules of construction would permit to ‘dependency’ for the purposes of s 91(2)(b).
I consider that the proper construction of ‘dependent’ in the Act is to be determined having regard to both the temporal requirement imported by the word ‘was’ and the words that set out the need met by the dependence. That need is stipulated to be ‘the eligible person’s proper maintenance and support’. In my view these words setting out the need that is fulfilled, particularly the word ‘maintenance’, limit the necessary dependence to dependence on the deceased for material aid. Here the plaintiff relies on a representation prior to the deceased’s death, on which in her favour I assume it is said that she depended at that time and subsequently, and says it is sufficient that the actual provision of material aid pursuant to the representation was to be after the deceased’s death. In my view this would be a very strained construction of s 91(2)(b), requiring the application of the word ‘was’ only to the proposed requirement of dependence to fill a need, and not to the actual receipt of aid to fill that need. The dependence for the eligible person’s ‘proper maintenance and support’ must have existed prior to the deceased’s death, and in my view that requires actual receipt of material aid to that end prior to the deceased’s death.
I make the additional observation that it can introduce error into the proper construction of the word ‘dependent’ and the concept of dependence in the Act to substitute for them the word ‘reliant’ and the concept of reliance. This can lead to error for two reasons. First, ‘reliance’ on a promise or representation in other areas of law is one only of a number of elements of a potential cause of action in, for example, proprietary estoppel or misleading and deceptive conduct. Reliance on the promise or representation would not ordinarily be sufficient to constitute such a cause of action without proof of reliance to the detriment of the applicant if the promise is not honoured, or the representation proves untrue. Secondly, in a family provision case, reliance to the applicant’s detriment on a promise of provision on the deceased’s death may be relevant to the question of moral duty, but that is a factor that requires proof under s 91(2)(c) and s 91(4)(a), separately and additionally to the requirement to prove dependence.
Extrinsic materials
If there is doubt as to the meaning of ‘dependent’ after consideration only of the text of the Act, in my view it is resolved in favour of the construction I have arrived at by the speeches that accompanied the introduction or consideration of the bill for the 2014 amendments (‘Bill’).[27] Both parties have referred me to these speeches as aids to construction.
[27]Justice Legislation Amendment (Succession and Surrogacy) Bill 2014 (Vic) (‘the Bill’).
The Bill was introduced into the Legislative Assembly and underwent agreed amendments in the Legislative Council after negotiation with the then Opposition. It was read a second time in the Assembly by the then Attorney-General, Mr Robert Clark, on 18 September 2014. In that Second Reading Speech, Mr Clark identified the purpose of the Bill as being to ‘reduce the potential for opportunistic claims, and to better reflect the underlying policy objectives of family provision laws’. [28] In relation to applicants including grandchildren, he stated that ‘the court will need to be satisfied that they were financially wholly or partly dependent on the deceased’ (emphasis added).[29] Debate was then adjourned, and resumed on 15 October 2014.
[28]Victoria, Parliamentary Debates, Legislative Assembly, 18 September 2014, 3443 (Robert Clark, Attorney-General).
[29]Ibid.
On that date, the then Shadow Attorney-General, Mr Pakula, identified the matters that had been of concern to the Opposition, which had been satisfactorily resolved by the amendments in the Legislative Council.[30] The amendments, amongst other things, removed an earlier proposed requirement within s 91(2)(b) that adult children of the deceased, in addition to categories lower down the list of eligible persons, show dependency and dependency as at the date of death of the deceased. The amendments limited the requirement of dependency to categories (h)-(k), including grandchildren, and removed the requirement in s 91(2)(b) that the necessary dependency be as at the date of death. There were no other amendments that touched on the category of grandchildren.
[30]Victoria, Parliamentary Debates, Legislative Assembly, 15 October 2014, 3651-3655 (Martin Pakula, Shadow Attorney-General).
Significantly, Mr Pakula did not indicate that the Opposition had had any concern with the requirement of dependency for grandchildren, or that dependency meant anything other than the receipt at the time in question of financial or other form of material aid (such as relying on the deceased for accommodation). He referred to a number of potential fact situations to show the wisdom of removing the requirement that an adult child show dependence as at the date of death of the deceased, in addition to moral duty and need. In those examples, Mr Pakula used the phrase ‘financially dependent’ as interchangeable with the single word ‘dependent’, with at least one example related to the provision of accommodation.[31]
[31]Ibid, 3653.
I conclude that the Parliamentary debate, at the time the 2014 amendments were considered and then passed, equated dependency with the receipt of material assistance. The history of the amendments also removes any doubt that may arise from the difference between s 91(2)(b) and s 91(4)(d) in relation to a temporal requirement that dependency be at the date of death of the deceased. The amendments in the Legislative Council and the debate thereafter in the Legislative Assembly show the clear intention to remove this temporal requirement from s 91(2)(b). In other words, a grandchild and others in the categories (h)-(k) of ‘eligible person’ only need to show, for the purposes of overcoming the prohibition on any order imposed by s 91(2), dependence on the deceased at any point prior to the deceased’s death.
Relevance of New South Wales cases
The interpretation at which I have arrived by textual analysis of the Act and reference to the Parliamentary debate is consistent with the meaning attributed to the requirement in New South Wales that a grandchild or member of the deceased’s household show dependence on the deceased prior to death. Section 57(1)(e) of the Succession Act 2006 (NSW) relevantly provides as follows:
57 Eligible persons
(1)The following are “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person:
…
(e)a person:
(i)who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii)who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member
The cases to which the defendant has taken me all relate to applicants who relied on s 57(1)(e) but were not grandchildren of the deceased. Accordingly, in addition to dependence those applicants needed to establish that they had been a member of the household of which the deceased was also a member. The plaintiff seeks to distinguish these cases on the basis that they turn on the requirement of being a member of the deceased’s household. That is a misreading of both the legislative requirements and the cases. As is apparent from s 57(1)(e), dependence is an additional and distinct requirement, and applies to a grandchild. In each of the cases I now discuss it was found, or assumed, that the requirement of being a member of the deceased’s household had been established. The cases turned on the additional and distinct requirement of dependence. Bearing in mind the differences in the legislation, these cases support the defendant’s construction, that dependence requires the actual receipt of material aid.
In Ball v Newey and anor[32] the applicant and deceased had been homosexual partners, who had purchased a house together, sharing expenses. The trial judge declined to extend time to enable the applicant to make a family provision claim on the basis that the applicant could not establish dependence on the deceased. The trial and appeal proceeded on the basis that ‘dependent’ meant financially dependent, but the majority of the Court of Appeal did not exclude the possibility that other forms of dependence ‘analogous to but distinct from financial dependence’ may be capable of satisfying the requirement.[33] In his judgment, Samuels JA, with whom Hope JA agreed, held that:
“Dependent”, in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed.[34]
[32](1988) 13 NSWLR 489.
[33]Ibid 491 (Hope JA agreeing at 490).
[34]Ibid.
Samuels JA further held that ‘need’ is not restricted to the requirements of basic necessity or sustenance, and that whether dependency, total or partial, exists is a question of fact, the standard of support being set by the parties themselves.[35] The Court unanimously held that sharing mortgage expenses could amount to partial financial dependence, in the view of Samuels JA particularly in the context of a sexual relationship.[36]
[35]Ibid 492.
[36]Ibid.
In Benney v Jones[37] the dicta of Samuels JA that dependency may not need to be financial were directly in point. The trial judge had found that the applicant and deceased, who shared accommodation, were ‘two men who were compatible living under the one roof because it suited them both as individuals to do so’, rather than in a homosexual relationship.[38] On appeal, counsel for the applicant submitted that dependency could arise from a solely emotional basis. The Court of Appeal rejected this construction, holding that there must be at least an element of financial dependence.[39]
[37](1991) 23 NSWLR 559.
[38]Ibid 564, as quoted by Priestley JA.
[39]Ibid Priestley JA 565-566, (Mahoney JA agreeing 560, Meagher JA agreeing 570).
In Spata v Turmino[40] the applicant was the adult step-son of the deceased, who was the wife of his father. He relied on sharing a household with the deceased and his father for a period of at least two years after his own marriage had broken down to show dependence upon the deceased for accommodation and the provision of domestic services and food during that period. His claim failed at trial on the question of dependence. In relation to the provision of accommodation, it failed because the house in which he had resided with his father and his deceased stepmother was owned solely by his father, and so, the trial judge ruled, the applicant could not show financial dependence on his stepmother. The trial judge held that both the stepmother and the applicant were dependent on her husband, the applicant’s father, for accommodation. In relation to the provision of domestic services and food, the applicant failed to adduce sufficient evidence to support the claim.
[40][2018] NSWCA 17.
On appeal, it was common ground that reliance on the deceased for accommodation may amount to dependence. The Court of Appeal held that the trial judge had given too narrow a construction to the requirement by considering the legal title to the home as being determinative. Payne JA, with whom Macfarlan JA agreed, as did Sackville AJA in a separate judgment, held that in accordance with long authority in that court, the word ‘dependent’ is an ordinary English word and the question of whether a person is wholly or partly dependent is a question of fact. Further, that a restrictive reading of ‘dependent’ would be contrary to established principles of statutory construction of remedial or beneficial provisions.[41] The Court held that the trial judge had erred because while legal title to a property may be relevant in deciding whether dependency upon another for accommodation is shown, it is not determinative. In a case such as the one before the Court, dependency turned on who in a practical sense determined who lived in the home.
[41]Ibid [71]. In this respect, the New South Wales Court of Appeal would appear to take a different approach to that of the Court of Appeal of this state, as set out in Popple v Rowe. I am of course bound by the Victorian approach.
After considering the evidence for themselves, the Court nevertheless concluded that the applicant had failed to show that he was wholly or partly dependent on the deceased for accommodation because he had failed to adduce credible evidence that the deceased encouraged him to stay at the home owned by his father, or actively supported or participated in a decision to enable him to stay.
I consider these cases to be persuasive authority that at least some material support from the deceased is required for an applicant to show that she or he was ‘wholly or partially dependent’ on the deceased. It is significant that this result was arrived at in New South Wales notwithstanding that in that state’s legislation under consideration in each of these cases the requirement of dependence is expressed in these words only, without the rider that the dependence be for the purpose of the applicant’s ‘proper maintenance and support’ that appears in the Victorian Act. As discussed earlier, I accept the submission of the defendant that this restriction as to purpose leads, together with other matters, to the conclusion that what is required is actual material aid at the point in time to be considered. The requirement that the applicant had been dependent on the deceased for her ‘maintenance and support’, specifically the use of the word ‘maintenance’ and the conjunction rather than disjunction with ‘support’, in my view, makes it clear that dependence in its legislative context means actual receipt of material aid at that point in time, not a mere promise of some undefined financial aid in the future.
Victorian cases
As noted, the meaning of ‘dependent’ has not been previously considered in Victoria in relation to the 2014 amendments. The parties have taken me to some Victorian cases under the earlier non-category based legislation. These cases must of course be approached with caution, given the reversion to a category based approach effected by the 2014 amendments. Nevertheless, they provide some illustrative support for the outcome to which I have arrived.
Feehan v Toomey[42] concerned an unsuccessful application by a granddaughter whose mother, as in this case, had predeceased her own mother, the deceased grandmother. The case was decided under the non-category based pre-2014 law but is instructive in that it summarises the law as it applied to applications by grandchildren even under that more flexible regime. Unlike this case, the applicant’s mother and her grandmother were estranged, and so the applicant had little contact with her grandmother during her childhood. The plaintiff seeks to distinguish it on that basis. The cases are similar, however, in that in both there was little contact between applicant grandchild and deceased grandmother in the years before the deceased’s death. Unlike this case there was evidence in Feehan v Toomey that the applicant had sought to revive the relationship but had been rebuffed by her grandmother. The evidence before me is opaque as to where the responsibility for the lack of contact in the years before the deceased’s death lies, if indeed responsibility can sensibly be ascribed. The plaintiff implies it was a combination of the grief each felt at her mother’s death and her youth. What is clear, however, is that the plaintiff did not take up the last opportunity for personal contact offered by the deceased. On that basis it might be thought that at least in terms of recent relationship with the deceased, the applicant in Feehan v Toomey may have had a stronger claim.
[42][2014] VSC 488.
Caution does need to be taken in extrapolating from the result in one case to the appropriate result in another, given that family provision cases are so fact dependent, and having regard to the change in the law. What can be of assistance are statements of principle. McMillan J summarised the law as it then applied to a claim by a grandchild in these terms (references retained):[43]
[43]Ibid [19].
Borrowing gratefully from the decision of Dodds-Streeton J in MacEwan Shaw v Shaw,[44] the following general principles are applicable to claims by grandchildren:
(a)the general rule is that a grandparent does not have a responsibility to make provision for a grandchild. That is, the bare fact of the relationship itself does not create an obligation;
(b)such a moral obligation rests on the parent of the grandchild.[45] If the parent provides shelter, accommodation, food and clothing, then the court is most unlikely to find that a deceased grandparent assumed a responsibility to provide for the grandchild in his or her will;
(c)in the absence of some special factor or unusual circumstance, prevailing community standards would not impose a responsibility on a grandparent to provide for a grandchild;[46]
(d)however, it is clear that no person can be automatically excluded as a person to whom a testamentary obligation was owed.[47] These general principles must be read in the context of each case, and grandchildren can neither be ruled in nor ruled out until all the facts are examined;
(e)The fact that a child’s parent has predeceased the grandparent is certainly a relevant factor.[48] Where a grandchild has lost his or her parents at an early age, been taken in by the grandparents in circumstances where the grandparents assume the role of surrogate parents, and the grandparents die when the grandchild is still dependent upon them, these factors would prima facie give rise to a claim; and
(f)significant generosity by a grandparent to his or her grandchild, including contributions to the education of the grandchild, does not convert the grandparental relationship into one of obligation to the recipients. In other words, voluntary support, generosity and indulgence do not translate into a legal obligation to provide for the grandchild.[49]
[44](2003) 11 VR 95, 105–9.
[45]MacEwan Shaw v Shaw (2003) 11 VR 95 (Dodds-Streeton J); Sherlock v Guest [1999] VSC 431 (12 November 1999) [25] (Beach J); Petrucci v Fields [2004] VSC 425 (29 October 2004) (Mandie J), Scarlett v Scarlett [2012] VSC 515 (1 November 2012) (Vickery J); Nicholas v Nicholas [2013] NSWSC 697 (4 June 2013) [128] (Hallen J).
[46]MacEwan Shaw v Shaw (2003) 11 VR 95, 106 (Dodds-Streeton J); Griffiths v West (McLaughlin M, unreported, NSW Supreme Court, 26 October 1994); Pearson v Jones (McLaughlin M, unreported, NSW Supreme Court, 14 August 2000); Sherlock v Guest [1999] VSC 431 (12 November 1999) [25]–[27] (Beach J).
[47] Petrucci v Fields [2004] VSC 425 (29 October 2004) [64] (Mandie J), Iwasivka v State Trustees Ltd [2005] VSC 323 (18 August 2005) [12] (Hansen J), Estate of Vourdoulidis [2013] VSC 34 (3 April 2013) [107]–[108] (Zammit AsJ).
[48]Petrucci v Fields [2004] VSC 425 (29 October 2004 [64] (Mandie J).
[49]Feehan v Toomey [19].
With the exception of paragraph (d) in the summary above, which no longer applies in those terms given the 2014 amendments, I consider the summary to be still good law. It would now apply at the stage of consideration of moral duty, as required by s 91(2)(c). Significantly, the discussion of the parent of the applicant grandchild predeceasing the grandparent testator in paragraph (e) is in the context of the grandparent taking on a surrogate parent role, which was not the situation in Feehan v Toomey, or in this case.
The plaintiff refers me to Petrucci v Fields,[50] a decision of Mandie J as he then was in which he made an award of family provision under the pre-2014 law in favour of the daughter-in-law of the deceased and the three adult children of her and the deceased’s son, who had predeceased him. The award in that case was not large, and was made in favour of the daughter-in-law for her life, only reverting to the grandchildren on her death. The daughter-in-law had a strong claim based on the assistance she and her late husband had given the deceased over more than 30 years. She had had a close relationship with the deceased, which terminated at the instigation of the deceased only two years before his death apparently as a result of his grief and anger over the death of his son, the daughter-in-law’s husband. In my view, that case does not bear any relevant similarity to this.
[50][2004] VSC 425.
In relation to the appropriateness of summary judgment, the plaintiff relies on statements in each of Bail v Scott-Mackenzie and Innes Irons and anor v Forrest by Derham AsJ that consideration of what his Honour described as the ‘second level of mandatory factors to be satisfied as set out in paragraphs 91(2)(b)-(d) of the Act’ would ordinarily require a trial.[51] Those comments in each case were dicta, as each case turned on whether the plaintiff was an ‘eligible person’. Further, I do not consider that his Honour was seeking to state an inflexible rule, which indeed is apparent from his use of the word ‘ordinarily’.
[51]Bail (n 13) [42]; Innes Irons and anor v Forrest [2016] VSC 782, [38]-[39].
I accept, in accordance with the New South Wales authorities to which I was taken, that whether or not an applicant was wholly or partly dependent on the deceased is a question of fact.[52] I am conscious of the obligation to approach summary dismissal with caution, and that, as I have myself observed in another case, summary judgment will more readily be given where the resolution of the dispute turns on a question of law, rather than on a question of fact.[53] In this case, however, there is no dispute on the facts. The plaintiff has had the opportunity to put her case at its highest on dependency; the defendant does not contest any of her evidence; and agrees that it should be taken as accepted for the purposes of this application. The issue is whether that evidence of fact is capable of satisfying a mandatory threshold requirement, the proper construction of which is a question of law. In those circumstances, I do not consider that the Court should refuse summary judgment by reason of Derham AsJ’s comments made in quite different circumstances.
[52]Spata v Tumino [2018] NSWCA 17, [71] (Payne JA).
[53]Singer v Spiewak and anor [2018] VSC 521, [33] citing Mutton v Baker and anor [2014] VSCA 43 [19] (Santamaria JA).
Application of conclusions on dependency to the facts
The plaintiff relies on two matters to meet the requirement in s 91(2)(b), namely that she was at any time prior to the deceased’s death wholly or partly dependent on her. These two matters are the representation made to her by her grandmother at the time of the mother’s death, on giving her the card for Equity Trustees, and the plaintiff’s subjective understanding based on discussions within the family that she would inherit what would have been her mother’s share of the deceased’s estate. Neither of these satisfy what I consider to be the proper construction of ‘dependent’ i.e. that it requires the actual provision of some form of material assistance.
As I noted in my oral reasons, there is no evidence that any material aid was ever provided to the plaintiff by the deceased after 1995. At its highest, the deceased offered to provide aid by means of a flight and accommodation for a visit to Australia in 2004 and the plaintiff declined it. Even assuming that such assistance could be regarded as being for the plaintiff’s ‘proper maintenance and support’, which may be doubted, the assistance while offered, was not in fact provided as it was not accepted. I do not by those comments imply any criticism of the plaintiff, as the full circumstances may not be in evidence.
In my oral reasons I did not address the accommodation provided by the deceased to the plaintiff for a period of about a month after her mother’s death in 1995, presumably with associated domestic services, nor the provision of accommodation to the plaintiff and at least her mother, and possibly father and brother, during the visit to Melbourne when the plaintiff was 14. This was because counsel for the plaintiff did not place any reliance on either event as satisfying the requirement of dependence. In the interests of completeness I discuss each occasion briefly in these elaborated reasons.
The provision of accommodation to meet a need for accommodation may in my view amount to dependence, as was accepted in Spata v Tumino. However, I do not consider that the plaintiff would have any real prospect of success in that regard in reliance on accommodation with other family members for the visit when she was 14. The purpose was discretionary and the use of the word ‘we’ in the plaintiff’s evidence when she deposes to this visit implies that there was at least one parent, and so primary caregiver, with her. The accommodation after her mother’s death may provide a stronger argument given that her father had returned to Greece. It was, however, brief and was not in circumstances of the plaintiff having no other adult care giver with whom she could have resided. Even if it could be considered as constituting partial dependence, it was many years before the deceased’s death. Pursuant to s 91(4)(d) the Court is required to have regard in setting the amount of any award to the degree to which the applicant was dependent on the deceased as at the deceased’s death. The degree in this case, in so far as the actual provision of material aid at that time is concerned, was nil. To that extent, I accept the alternative argument advanced by the defendant in support of the proposition that the plaintiff has no real prospect of success.
Relevance of plaintiff’s evidence to other requirements of the Act
In my oral reasons, I evaluated the plaintiff’s evidence in terms that I will repeat shortly, in the context of concluding that she had no real prospect of success of showing the required dependency on the deceased. My comments also relate to the requirement in s 91(2)(c) that the plaintiff show the deceased owed her a moral duty as at the deceased’s death to provide for the plaintiff’s proper maintenance and support, and the requirements in ss 91(4)(a) and (d) and in s 91(5)(b) that the Court must take into account the degree of moral duty and dependency as at the time of the deceased’s death, and not order an amount that exceeds the degree of dependence. I now put the comments that follow, largely repeated from my oral reasons, in that framework as well.
I first discuss the representation. Having regard to the account of it given by the plaintiff in her Second Affidavit, and for the purpose of taking her evidence at its highest, I proceed on the basis that the deceased said to the plaintiff on that occasion that should she be in need after her grandmother’s death she could contact Equity Trustees. In other words, the representation related to provision after her grandmother’s death. The plaintiff adds that what she understood this to mean was that some provision would be made for her and her brother from her grandmother’s estate, implicitly independent of need or request. This understanding of the plaintiff is consistent with the acts of the deceased in making provision for the plaintiff and her brother in previous wills, although that provision was modest, as indeed is the provision made for the other grandchildren in the last Will.
The plaintiff submits that the deceased did not resile from her representation to the plaintiff. In my view, that may be putting it too high, because plainly the deceased did not make any provision for the plaintiff in her Will, which would have been the simplest means of giving effect to an intention to provide for the plaintiff. Certainly, however, there is no evidence that the grandmother expressly resiled from her representation that the plaintiff could call on her estate if she was in need, if that representation should be construed as meaning irrespective of provision in her will, or conveyed to the plaintiff that she had changed her mind.
I also accept that, as put by counsel for the plaintiff, the representation was made on a solemn occasion, being the mother’s death, and so it is to be given weight. Further, that it was reasonable at the time to rely on it being given at such a solemn occasion. As against these matters, the representation was made over 20 years ago at a time when the plaintiff was a child. She is no longer a child. At the time of the hearing she was unemployed, but she has tertiary qualifications including a Master’s degree. In short, the plaintiff’s circumstances and ability to support herself at the time of the deceased’s death and now are markedly different from those pertaining as at the date the representation was made.
Further, the plaintiff did not see the deceased again after 1995, and there was no direct contact between her and the deceased after 2004 i.e. for 13 years before the deceased’s death. There is no evidence from the plaintiff that an explanation for the lack of contact is, for example, that she made attempts to directly contact her grandmother after that time, but was rebuffed. There is no evidence the plaintiff attempted to contact her grandmother directly at all after 2004. The only contact between the plaintiff and her grandmother after 2004 was indirect, in the form of requests made either by relatives for photographs or by Equity Trustees for her mother’s ashes. In both cases, the plaintiff’s evidence is opaque as to whether the request was made to, and answered by, her or some other member of her natal family such as her brother or father.
In relation to the discussions within the family, there is no time specified in the plaintiff’s evidence as to when those discussions occurred and there is no person specified. It is certainly not stated that that discussion emanated from the deceased herself, and from the way it is phrased, I infer that it did not. It refers to what someone else said as to their belief. We do not know the source of their belief, in particular whether it was reasonable in any way in the sense of coming directly from the grandmother. We know nothing about it, other than at some unspecified time in some unspecified manner, an unspecified person – not the deceased – gave the plaintiff the impression that she would receive her mother’s share. In my view, the evidence is so uncertain that it does not add to the representation. It does not provide a separate basis for the assertion that she was dependent on her grandmother, or that her grandmother owed her a moral duty to make provision for her.
Conclusion on prospects of success
The plaintiff does not rely on the receipt by her of any actual material aid from her grandmother during her grandmother’s life. On what I consider to be the correct construction of the requirement of dependence in s 91(2)(b) it follows that she has no real, as opposed to fanciful, prospect of success in satisfying the requirement that she was ‘wholly or partly dependent on the deceased for (her) proper maintenance and support’.
I have also considered the plaintiff’s prospects of success if, as was not argued by her counsel, the brief provision of accommodation by her grandmother after her mother’s death could be regarded as meeting the requirement of partial dependency in s 91(2)(b). Even if it could properly be regarded in that way, the Court would be required pursuant to s 91(4)(a) and (d) to take into account that the period was very brief, was long before the deceased’s death while the plaintiff was still a child, and the circumstances by the time of the deceased’s death were very different. The consequence having regard to moral duty and the degree of dependence as at the date of the deceased’s death would be, in my view, that the plaintiff would have no real prospect of obtaining any amount by way of an order. It would accordingly be futile to allow the proceeding to continue.
Discretion to refuse summary judgment
After evaluating the plaintiff’s evidence at its highest and reaching the conclusion that she has no real prospects of success, I turned in my oral reasons to the question of the discretion conferred by s 64 of the CPA to nevertheless refuse summary judgment. I now repeat those oral reasons, largely verbatim.
The plaintiff says that I should nevertheless allow the matter to go to trial for four reasons. First of all because of the plaintiff’s circumstances, her need. Secondly, because there would be no prejudice to the defendant. Thirdly, because it is a large estate. Fourthly, because of the novelty of the application.
I do not accept that these matters, either singly or together, mean that the discretion should be exercised.
In relation to need, I accept that the plaintiff is in difficult circumstances, but need itself is not enough, in my view, to justify putting the estate to the cost of a trial. Section 64(a) of the CPA refers to the interests of justice, which means justice to both parties.
The plaintiff says that there would be no prejudice to the defendant on the basis that the defendant is a professional litigant, or at least a professional trustee. What that ignores is that the cost of the trial will not be borne by Equity Trustees itself but will be passed on to the estate, and so the cost of a trial will impose a burden on the estate and the other beneficiaries. I accept the submission of counsel for the defendant that given what the plaintiff has said about her circumstances, even if a costs order is made against her, the estate may not be able to recover on it.
The third matter on which the plaintiff relies in relation to discretion is that the estate is, to use the plaintiff’s words, a large estate. I think that is putting it too high. It is certainly not a small estate, but it is not so large – and indeed, in Melbourne property terms, I would not even say large – that the cost of the trial is irrelevant.
The fourth matter is that there is no previous decided decision and so the matter should be proceed to trial for an authoritative determination. That is a reason to approach the matter with caution but it is not a reason not to determine the matter now if the result is clear. In my view, on the facts of this case, the result is clear.
Costs
I dismissed the proceeding on 8 November 2018. The defendant sought an order at that time that the plaintiff pay its costs on the standard basis. I did not determine the costs application, pending delivery of these elaborated written reasons. I now invite the parties to consider the question of costs and supply their proposed orders in that regard. If they are unable to agree, and the defendant seeks to renew its application for costs, it may do so by seeking within the next 28 days that the proceeding be relisted for that purpose.
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