| 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 |
---
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 |
---
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).
---
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,…
Keep reading for free
Create a free CaseChat account to read Veniou v Equity Trustees Limited and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2018] VSC 832
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
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.