FEDERAL COURT OF AUSTRALIA
Wan v BT Funds Management Limited [2022] FCA 302
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- Case
- [2022] FCA 302
- Decision Date
CaseChat Overview and Summary
The court dismissed the appeal and ordered that the Applicant pay the costs of the Third Respondents' appeal. The costs of the First and Second Respondents were reserved for later determination, with a provision for referral to a Registrar of the Court if the parties could not reach an agreement within seven days.
Orders
Orders of the court
1. The appeal is dismissed.
2. The Applicant pay the Third Respondents’ costs of and incidental to the appeal.
3. The costs of the First and Second Respondents are reserved for later determination.
4. In the event that the Applicant and the First and Second Respondents are unable to reach agreement concerning the reserved costs in order 3 within 7 days, the First Respondent is to inform the Court that agreement has not been reached and thereupon any question concerning the entitlement to costs of the First and Second Respondents, and the quantum of those costs, be referred to a Registrar of the Court for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In response, the Third Respondent submitted that AFCA’s references in the Determination to there being “no evidence” to support the financial support or common residence were clearly references to “no documentary evidence”, “no independent evidence” or no “corroborative evidence”. Contrary to the Applicant’s contention, the Third Respondent submitted that AFCA’s determination refers at length to all the material it considered – including matters relevant to the questions of “financial dependence” and a “common residence” – and AFCA considered that evidence in a deliberative way. Thus, the Third Respondent submitted that AFCA’s determination was not unreasonable. Rather, AFCA proceeded rationally and logically from the absence of evidence to conclude that the Applicant was not a “dependant” of the deceased.Consideration of grounds 6 and 7 I am not satisfied that AFCA failed to consider relevant evidence in relation to financial support provided to or by the deceased or evidence that the deceased’s residence was a common residence. In relation to the question of financial dependence, AFCA acknowledged that the deceased paid for all the household groceries and utilities, the expenses on the car which he allowed the Applicant use and also that he had paid for the Applicant’s one-off dental expenses. Notwithstanding, AFCA expressed a number of concerns about the evidence, noting as follows: The complainant has indicated that at the time of the deceased member’s death she was on Centrelink new-start allowance and was receiving $280.00 per week. She also says the deceased member covered their living expenses and provided $300 a week to run the house. She says she had his key card and would withdraw these funds.There has been no evidence provided to establish this. However, even if this arrangement was in place, this would be consistent with someone who, because of his health, was unable to get to the bank or shop for the items required to run a household. It appears likely the deceased member gave the complainant access to his money to enable her to meet his own needs and as a form of payment for his care.The complainant has provided a photograph of a cheque that was provided to her in November 2016 for $6,000. This was for her to have her teeth fixed. This is explicable as a one-off gift.There has been no evidence provided of joint expenses or transfers to or from the complainant or deceased member’s bank accounts. Having regard to those matters, AFCA concluded that there was no evidence of financial support provided by or to the deceased member and, accordingly, it could not be satisfied that the Applicant was financially dependent on the deceased. In relation to the question of a common residence, it is similarly apparent that AFCA took into account evidence that the Applicant had stayed at the deceased’s home on occasion, had left clothes at the deceased’s residence and stayed overnight with increasing frequency as his health declined. Despite that evidence, AFCA regarded it as significant that the Applicant maintained her own residence throughout her relationship with the deceased and there were only scant, cursory discussions about cohabiting at the North Fitzroy property on a permanent basis. Accordingly, AFCA determined that there was no evidence before it to suggest that the deceased’s residence was a common residence.