Comninos v Buckley; The Estate of Comninos

Supreme Court of NSW|2019-07-18|Before: Hallen J

re NSW (2005, LexisNexis Australia) Practice Note SC Eq 7 Category: Principal judgment Parties: Pascall Comninos (Plaintiff) Denise Buckley (Defendant) Representation: Counsel: Mr C Sparks (Sol) (Plaintiff) Mr N Bilinsky (Defendant)

Solicitors: Castle Law Group (Plaintiff) McIntyre Legal (Defendant) File Number(s): 2018/367690

Introduction

HIS HONOUR: On 28 June 2019, I listed, for hearing, a notice of motion filed on 22 May 2019, by Denise Buckley, who is the appropriate Defendant, seeking, relevantly, an order that the proceedings brought by the Plaintiff for a family provision order be wholly dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") and an order that the Plaintiff pay the Defendant's costs of the proceedings. These reasons relate to that notice of motion.

The Substantive Proceedings

The Plaintiff, Pascall Comninos, commenced the proceedings by Summons filed on 28 November 2018. He sought an order for provision out of the estate and notional estate of his brother, Stavrianos George Comninos ("the deceased"), pursuant to Ch 3 of the Succession Act 2006 (NSW) ("the Act") and other consequential relief. He also sought an order "designating the Respondent as the Executor of the Estate of the Deceased"; and an order that the Defendant be restrained from dealing with the estate of the deceased pending the determination of the family provision application. He did not name a Defendant in the Summons.
(I note, though it is not of huge significance given the conclusion to which I have come, that the Summons also did not specify any legislative sources for the consequential orders that were sought and did not seek an order for the Court to extend the time for the making of the application. The Summons left blank spaces, in numerous places, presumably where the relevant sections of the Act were meant to have been inserted.)
The Summons appears to not have been filed in the Court's registry (and, hence, the proceedings were not commenced) within the time prescribed by the Act, namely "not later than 12 months after the date of the death of the deceased person": s 58 of the Act.
(It also appears from a document available on the Court's computerised record system, that the Plaintiff had made an application to postpone the payment of the filing fee of the Summons. Although it is not clear when that application was made, and, therefore, when he sought to file the Summons in the Court registry, a letter dated 29 November 2018, from the Court to the Plaintiff, states that "[T]he Application has been considered and has been approved" and that "[P]ayment of the fee is postponed until the proceeding has been concluded". I should also note that the Summons is dated 16 November 2018 and the Court file stamp is 28 November 2018.)
In support of his Summons, the Plaintiff filed an affidavit affirmed on 16 November 2018. He stated in this affidavit, amongst other things, that: 1. The deceased died on 16 November 2017, aged 82 years, having been born in September 1935. 2. He is the younger brother of the deceased. 3. He was born in August 1937 and is 81 years old. 4. He did not know whether the deceased left a Will, although, having searched the database of the NSW Online Registry, he had not been able to locate any Notices of Intended Application for either Probate, Letters of Administration and/or Letters of Administration with the Will annexed. 5. He is a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time or at any other time, a member of the household of which the deceased person was a member. 6. He had not received any provision from the estate of either of his parents, although he had made a substantial contribution to the building up of their estates. He did not make any claim for provision out of either parent's estate. 7. He did not have a good relationship with his mother. He described that relationship as "very poor, strained and complex and I was generally on the outer with her for reasons which I still do not understand". 8. He was a disability pensioner. At the date of his affidavit, he was receiving a workers compensation pension ($1,784.90 per month gross, or almost $800 per fortnight, net), due to injuries that he sustained "during my working life predominantly in the family business located at Haymarket and then in Government transport". (There was no evidence substantiating the first part of the assertion.)
In the affidavit, the Plaintiff included the following passages: "The Deceased controlled the finances of the company and family business prior to my first working at the Dixon Street premises. Prior to my starting to work at the family business, I received funds from my brother for spending and everyday expenses including toys, bikes, sporting goods and the like as well as for food and other expenses, this occurred when I was a teenager for a number of years. The family lived at Randwick at the time at 26 Cowper Street, Randwick where the Deceased also resided. … Unfortunately, the relationship with the Deceased deteriorated due to a combination of factors during the time of my mother's influence, the death of my father in the early 1970's and a more combative relationship with the Deceased due to the influence and effect of our mother. … I have now decided to make a claim because I performed a large amount of works for the accumulation of assets by my mother and father, which were then transferred to my brother, the deceased. … The Plaintiff had a massive falling out with the Deceased, when the Deceased attacked the Plaintiff with a knife at the Dixon Street premises. I was lucky to survive as I kicked him in his privates and I immediately left. This caused a whole lot of anger and resentment with the Deceased. The argument started over payment of my wages and non-payment by the Deceased and we had no further relationship. … The Plaintiff and the Deceased had not spoken in a considerable period after the knife attack mentioned earlier. I do not have a great recollection of all events. At times, it is difficult to remember exact dates, which I guess is a reflection of age. …" (My emphasis in bold)
Whilst on the front page of the Plaintiff's affidavit, it is written that the Plaintiff is "SELF - REPRESENTED", it seems likely that he had some assistance in the preparation of that affidavit (although, perhaps, from someone other than a lawyer).
On 23 May 2019, an affidavit of the Defendant in accordance with Paragraph 9.1 of Practice Note SC Eq 7 (which Practice Note applies to claims for a family provision order) was filed. In that affidavit, the Defendant averred: 1. She is the daughter of the deceased. 2. The deceased left a duly executed Will, dated 14 May 2013, Probate of which Will was granted to her, by this Court, on 10 January 2018. 3. In that Will, the deceased left a specific legacy of $100,000 to each of five named grandchildren, for their own use and benefit absolutely; he made a specific devise of real estate in Queensland, and real estate in Newtown, Sydney, subject to a life estate over what was described as Flat 2, in the Newtown property, to his partner and to his four children, as tenants in common in equal shares; he gave a life estate in real estate at Wentworth Falls, New South Wales, and in Flat 2, to his partner; and he divided the rest and residue of his estate between his four children equally. 4. In the Inventory of Property attached to, and placed inside, the Probate document, the deceased's estate was disclosed as having an estimated value of $4,340,622. 5. The testamentary and other expenses and liabilities that had been paid out of the estate, by the date of the affidavit, amounted to $259,192.
Importantly, the Defendant disclosed that pursuant to orders made by Slattery J on 23 July 2018, and in lieu of her entitlement under the deceased's Will, an amount of $500,000 had, on 30 July 2018, been distributed to the deceased's partner; that on 22 January 2019, the pecuniary legacy of $100,000 had been distributed to each of the five grandchildren of the deceased; that in late January 2019, and early February 2019, interim distributions of $675,000 had been made to the Defendant and to each of the three other children of the deceased; and that the remaining undistributed estate was $989,000.
The Defendant also disclosed that there was a taxation liability of the estate (estimated to be $322,000), costs for completing the administration of the estate ($40,000) and the costs of these proceedings, until the conclusion of the hearing of this notice of motion ($20,000) left to be paid out of the estate.
Assuming the liabilities yet to be paid prove to be accurately estimated, the remaining estate had a value of $607,000. (There was a suggestion made from the Bar table that the current net value of the estate is less than that but I have used the estimates provided in the affidavit evidence: Tcpt, 18 July 2019, p 13(22-27).
The Defendant did not disclose, in the affidavit, when it was that she was served with the Plaintiff's Summons. However, at the hearing of the notice of motion, the Court was informed, without objection, that it had not been until 30 April 2019: Tcpt, 18 July 2019, p 9(11).
Thus, it seems not to be in dispute that the Defendant had not been served by 8 February 2019, which is a few days after she made the last of the distributions out of the estate, and almost 2 months after the expiration of the time within which the proceedings should have been commenced.
I have set out the formal evidence of the Defendant, as there is unlikely to be any dispute about the factual matters, about which the Plaintiff would have no knowledge. In any event, I am satisfied that the affidavit of the Defendant sets out, in some detail, the steps taken in the administration of the deceased's estate.

Procedural History

It is convenient to next set out the critical procedural steps that occurred in the case.
The proceedings were listed before me, in the Family Provision List, for the first time, on 8 February 2019, on which occasion, the Plaintiff appeared in person. The matter was adjourned at his request, until 8 March 2019, as the Court was informed that he wished to obtain legal advice (which was encouraged). Unsurprisingly, on the first adjourned date, there was no appearance by the Defendant.
On 8 March 2019, there was no appearance by the Plaintiff. However, late in the afternoon of 7 March 2019, an email was sent to the Registry of the Court, from Thea Comninos (a daughter of the Plaintiff), in the following terms: "I am writing this email on behalf of my father Pascall Comninos who is the Plaintiff and is in his 80's. He is currently unwell and will not be able to attend the Supreme Court on Friday 8th March 2019 for his matter's call over at 10:30 am. Would you please adjourn the matter for 3 weeks so that he can get better and go to see a solicitor. Thank you for your assistance and if you have any questions please do not hesitate to contact me on 04xxx."
In the circumstances, and despite the informality of the email correspondence, and the lack of medical evidence supporting the assertion that the Plaintiff was unwell, the proceedings were adjourned, again, this time, until 22 March 2019. My Associate, at my request, sent an email late on 8 March 2019, in the following terms: "His Honour has been forwarded a copy of the correspondence which was sent to the Registry early this morning. Any correspondence in respect to matters in his Honour's List should be directed to his Honour (sent to my email address). His Honour has adjourned the matter to Friday, 22 March 2019. An appearance is required on that occasion by the Plaintiff or by the Plaintiff's legal representative."
On the adjourned date, again, there was no appearance by either party. However, an email was sent to the Court late in the afternoon of 21 March 2019, from Thea Comninos, in the following terms: "Thank you for your email My father who is still currently unwell has an initial appointment with a solicitor in Parramatta next week. This is the earliest appointment with the solicitor that could be obtained. It would be appreciated if my father could be excused from attending court tomorrow due to his ill health and after the meeting with the solicitor next week. Further research has been undertaken on the estate of my father's late brother. Would you please adjourn the matter for 2-3 weeks to allow for the appointment of the solicitor"
The email from Ms Comninos, which, again, was sent to the Registry, did not come to my attention during the course of conducting the Family Provision List on 22 March 2019. As there had been no appearance, I ordered, pursuant to UCPR r 13.6, that the directions hearing be adjourned to another date, and directed that not less than 5 days before that date, a notice of the adjournment be served on the Plaintiff, advising that the proceedings may be dismissed if there is no attendance by, or on behalf of, the Plaintiff at the adjourned hearing.
It appears that the Registry provided a written notice, dated 26 March 2019, addressed to the Plaintiff, informing him that the matter had been adjourned until 12 April 2019, and that "if there is no attendance by or on behalf of the plaintiff on the adjourned date, the Court may dismiss the proceedings".
On 9 April 2019, there was e-filed, in the Registry, a Notice of Appointment of Solicitor. This document revealed that "the Plaintiff has appointed Christopher Sparks of Castle Law Group to act as the plaintiff's solicitor in these proceedings".
On 12 April 2019, Mr Sparks, solicitor, appeared on behalf of the Plaintiff. Again, naturally, there was no appearance by, or on behalf of, the Defendant. The Court was informed that Mr Sparks needed time to consider the Plaintiff's claim. On this occasion, the Court: "1. Notes that in the event that it is not possible to make directions for the further conduct of the proceedings due to any default by the Plaintiff the Court will give consideration to dismissing the proceedings for want of due dispatch. 2. Stands the matter over for further directions before the Family Provision List Judge on Friday, 3 May 2019."
As stated, the Summons was served upon the Defendant on 30 April 2019. There is no suggestion that she had been given any prior notice that a Summons had been filed, as it had been, almost 5 months earlier.
On 3 May 2019, Mr Sparks, solicitor, appeared on behalf of the Plaintiff, and Mr N Bilinsky of counsel appeared on behalf of the Defendant. The Court made the following directions: "1. Directs that the Plaintiff is to serve any further evidence upon which he intends to rely, together with any documents that have not been filed and served in accordance with Practice Note SC Eq 7, Paragraph 6, by 4:00 p.m. on 17 May 2019. 2. Directs that in the event that the Plaintiff does not comply with the direction he will require the leave of the Court to serve any further evidence other than updating affidavits. 3. Stands the matter over for further directions before the Family Provision List Judge on Friday, 24 May 2019."
Subsequently, no further evidence was filed by, or on behalf of, the Plaintiff. The other documents, required by Paragraph 6 of the Practice Note, had not been filed either.
As stated earlier, on 22 May 2019, the Defendant, by her solicitor, Ms A McIntyre, filed the notice of motion with which I am now dealing. The notice of motion was given the return date of 31 May 2019, despite the fact that it was listed in the Family Provision List on Friday, 24 May 2019.
However, on 24 May 2019, Mr T Yeh, of counsel, appeared on behalf of the Plaintiff. Mr Bilinsky appeared, again, on behalf of the Defendant. The Court made the following directions: "1. Orders that the notice of motion listed before the Family Provision List Judge on Friday, 31 May 2019 be vacated. 2. Stands the matter over, including the notice of motion, for further directions before the Family Provision List Judge on Friday, 7 June 2019."
On 3 June 2019, the Defendant provided an outline of submissions dated 31 May 2019 to the Court. A copy of the outline of submissions was said to have been served upon the Plaintiff's solicitors the week before.
On 6 June 2019, the Plaintiff filed a notice of motion seeking the following relief: "1. That the Orders of the Court dated 3 May 2019 be stayed and or varied. 2. The Plaintiff be granted leave to file additional evidence in these proceedings notwithstanding the Orders of 3 May 2019 due to the poor health of the Plaintiff; 3. The Plaintiff be granted 3 weeks to file additional evidence in these proceedings. 4. Ann [sic] other order the Court Determines. 5. Costs."
On 6 June 2019, there was filed an affidavit, affirmed 5 June 2019, by the Plaintiff. Relevantly, the affidavit stated: "4. This affidavit was lodged with the Supreme Court registry with the Originating Process on 16 November 2018, which I am led to believe was the last day for filing of the claim under the relevant legislation. At the time of filing, I made an application for deferral/exemption of the filing fee because I do not have the funds available as a disability pensioner. The application was lodged on time however the Supreme Court only later granted my application about deferral/exemption of the filing on or about 28 November 2018 notwithstanding that I had lodged the claim on time. 5. I have received from the Defendant's solicitor the following documents, being a Notice of Motion - seeking summary dismissal; b Affidavit of Executor - Denise Buckley dated 23 May 2019; c Submissions of the Defendant in support of the Notice of Motion. 6. I oppose the Orders ought in the Defendant's Notice of Motion and I do not believe that such an application is warranted at this stage of the proceedings. 7. As indicated in the First Pascall Comninos Affidavit, I am an elderly gentleman who is not currently in good health and I have no prospects of improving my health in this life. 8. I was initially self-represented in these proceedings and have relied upon the support of my family and friends. When I commenced these proceedings, I did not have the funds available to engage a solicitor to act on my behalf and due to my poor health I did not have the mobility and opportunity to travel to and meet with potential solicitors. 9. I have been introduced to Castle Law Group through a friend and I have now had 2 conferences with a solicitor from that office, one of those meetings was for the preparation of this affidavit. Any delay in the organising of a meeting with a solicitor has been due to my poor health and that I have been sick. 10. I am now aware that the Court made orders on 3 May 2019, requiring in essence that I file any affidavit evidence that I intend to rely upon in these proceedings on or by 17 May 2019. Unfortunately, due to my health I have not been able to prepare any affidavit evidence and in addition, my daughter, Theodora Curry, who has assisted me lives in Scone in the Hunter Valley and she has not been in Sydney during this period to assist me with the preparation of any affidavit evidence. 11. I have been to see my General Practitioner over a period of approximately 20 years and he is intimately aware of my ongoing health conditions and ailments, many of which have been outlined in the First Pascall Comninos Affidavit. Annexed hereto and marked 'A' is a true copy of a Doctor's report from my General Practitioner Dr Lou Lewis of Matraville. … 14. I now have the benefit of legal representation to allow me to properly and fully prepare my case, which to date has been down as a self-represented litigant. Due to my poor health, I have not been mobile nor have I had the ability to have conferences with my legal representatives, which is why I have sought 4 weeks to file the additional affidavit evidence on behalf of the Plaintiff, which specifically deals with the case generally as well as the issues raised in the submissions provided by the Defendant. 15. [I]f the case was to be heard without the Plaintiff having the benefit of putting on further affidavit evidence, there would be severe prejudice to the Plaintiff. In addition, I believe that I am in a position to deal with the issues raised in the Defendant's notice of motion, the affidavit of the executor as well as the submissions in support of the summary dismissal application. 16. I have now had the benefit of reading the affidavit of my niece Denise Buckley, who is the executor of the Estate of my late brother Stavrianos George Comninos. I need the additional period of 3 weeks to respond to this affidavit and for my daughter to assist me to locate and review all of my records. 17. I need additional time to chase up records associated with the estates of my late father and mother which includes attending the State Library as well as the records at the repository. 18. In addition, I estimate my legal costs up to the hearing of the notice of motion as well as the compulsory mediation in the matter to be $15,000."
Annexed to the affidavit was a document, purporting to be from Dr Lou Lewis, addressed to "the Presiding Judge". It is difficult to know whether this document is authentic bearing in mind its form. However, it is dated 6 June 2019, and it states: "I am a general practitioner of about [20] years. I have been the general practitioner for Pascall Comninos for over 20 years as well as his wife who passed away in 2018, from cancer after an illness of approximately 6 months. Pascall has been in poor health over an extended period of time. He continues to suffer from various ailments including - broken back which has been fused in 3 places, numerous cancer operations on bowel, pancreas and internal injuries. I am providing this doctor's certificate to certify that Pascall Comninos has been unwell for the last 6 weeks and has not been in the position to attend on his solicitor. His health is poor and he suffers from spinal injuries, internal bleeding as well as complications from the cancer operations and low immune system, he is not in the position to complete all of the works for his legal matter for another 3 weeks. If you have any questions please contact me."
On 7 June 2019, Mr Yeh of counsel again appeared on behalf of the Plaintiff and Mr Bilinsky of counsel again appeared on behalf of the Defendant. With some hesitation, the Court made the following directions: "1. Directs the Plaintiff to serve any further evidence in chief upon which it is intended to rely by 4:00 p.m. on 21 June 2019. 2. Orders the Plaintiff to pay the Defendant's costs of the notice of motion filed 6 June 2019 (which has been dealt with by virtue of the direction made above). 3. Stands the Defendant's notice of motion over before the Family Provision List Judge on Friday, 28 June 2019."
On 28 June 2019, Mr Yeh, again, appeared on behalf of the Plaintiff and Mr Bilinsky of counsel again appeared on behalf of the Defendant.
I then made the following order and direction: "1. Orders that the notice of motion filed 22 May 2019 by the Defendant for dismissal of the proceedings pursuant to UCPR rule 13.4(1) be listed for hearing in the Family Provision Running List on Thursday, 18 July 2019, with an estimated duration of 2 hours. 2. Directs that the Plaintiff deliver to the Chambers of the Family Provision List Judge, in hard and soft copy, an Outline of Submissions, which is to include an index of affidavits upon which it is intended to rely, by 4:00 p.m. on 8 July 2019, and serve a copy of the same on the other party by the same date and time."
Despite what had been written by the Plaintiff in his affidavit of 6 June 2019, and despite the passage of 3 weeks thereafter, and even at the date of hearing of the notice of motion about 2 weeks after that, no additional evidence, at all, was filed, or served, by, or on behalf of, the Plaintiff
Having received no outline of submissions from the Plaintiff's legal representatives, my Associate, at my request, sent an email, dated 16 July 2019, at 2:08 p.m., which was in the following terms, to the legal representatives of the parties: "This notice of motion in this matter is listed in the Family Provision Running List on Thursday, 18 July 2019 with an estimated duration of 2 hours. Submissions on behalf of the Plaintiff were due on 8 July 2019. No submissions have been received by the Plaintiff. Please advise what is happening in this matter and whether the notice of motion will be proceeding on Thursday, 18 July 2019."
At 12:34 p.m. on 17 July 2019, my Associate received the following email from Mr Sparks. "We refer to the above matter and the earlier correspondence received providing that the matter is listed in the Family Provision Running List on Thursday 18 July 2019. We advise that due to the continuing ill-health of the plaintiff we have been unable to obtain effective instructions from 9 July 2019. We are not able to proceed with the matter and advise that we are no longer acting for Mr Comninos in this matter."
(Despite the email from Mr Sparks being sent to my Associate a day after my Associate had sent the email, there is no evidence that the email from the Court the day before had not come to his attention the day it was sent, or that he had failed to read the email shortly after it was sent.)
There was no affidavit, or other evidence, supporting the assertion made in the Plaintiff's solicitor's email, attached to the email, and no evidence was provided, subsequently, supporting the assertion of the Plaintiff's continuing ill-health.
At my request, on 17 July 2019 at 12:41 p.m. the following email was then sent by my Associate to the Plaintiff's solicitor: "His Honour has been shown the email from Mr Sparks. Having checked JusticeLink, there does not appear to have been filed any documents relating to your firm ceasing to act. You may care to consider the rules in this regard. The matter remains as listed tomorrow."
No further response was received from the Plaintiff's solicitor, although a search of the Court's computerised record system revealed that at 3:51 p.m. on 17 July 2019, a Notice of Intention of Ceasing to Act had been filed. (The Notice was not formally served upon the Defendant's solicitor: Tcpt, 18 July 2019, p 1(47)).
No submissions were received by, or on behalf of, the Plaintiff.

The course of the hearing of the notice of motion

At shortly before 10:00 a.m. on 18 July 2019, the matter was called. Mr Bilinsky appeared for the Defendant. There was no appearance by, or on behalf of, the Plaintiff.
In view of the earlier history of the matter, I adjourned the proceedings, and at 10:05 a.m., my Associate, at my request, sent an email, in the following terms, to the Registry of the Court: "Could you please advise urgently whether any email correspondence has been received in the last 24 hours in respect of the above matter?"
I also adjourned to "give the Plaintiff an opportunity to come just in case he is unwell and he is running late" (Tcpt, 18 July 2019, p 2(11-14)) and to give the Defendant's solicitor an opportunity to check to see whether she had received an email correspondence from, or on behalf of, the Plaintiff (Tcpt, 18 July 2019, p 2(32-35).
At about 10:30 a.m. the following email was received from the Registry: "There is nothing coming up in a search of the email boxes"
Following receipt of the email, the hearing again proceeded. It was called outside the Court, and once again, there was no appearance by, or on behalf of the Plaintiff.
Upon returning to Court, there was discussion about UCPR r 7.29, which provides: "7.29 Withdrawal of solicitor (1) A solicitor who ceases to act for a party in any proceedings may file notice of the change and serve the notice on the parties. (2) Except by leave of the court, a solicitor may not file or serve notice of the change unless he or she has filed and served on the client a notice of intention to file and serve the notice of change: (a) in the case of proceedings for which a date for trial has been fixed, at least 28 days before doing so, or (b) in any other case, at least 7 days before doing so. (3) Unless notice of the change is filed with the leave of the court, a solicitor filing such a notice must include in the notice a statement as to the date on which service of the notice of intention required by subrule (2) was effected. (4) A solicitor may serve a notice of change or notice of intention under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor."
This rule prevents the solicitor of a party from ceasing to act shortly before a hearing without leave. It follows that there had been non-compliance, by the Plaintiff's solicitors, with this rule. There had been no application made for leave and no evidence relied on in support of any such application in any event.
Because I considered that the Court was obliged to accord procedural fairness to the Plaintiff, which extended to his having an opportunity to be heard before the issues in the notice of motion were decided, I asked the Defendant's legal representative to contact Mr Sparks to see if he wished to appear on behalf of the Plaintiff.
Very fairly, if I may say, Ms A McIntyre, the Defendant's solicitor, without any hesitation or opposition, acceded to the suggestion that she should contact the Plaintiff's solicitor, by telephone, and confirm that the matter was proceeding and enquiring whether he wished to appear.
Subsequently, Mr Bilinsky informed the Court that Ms McIntyre had contacted the Plaintiff's solicitor, and that he was going to appear: Tcpt, 18 July 2019, p 4(19) - p 5(14). In the circumstances, the matter was adjourned until his arrival at about noon. I am satisfied that, in this way, an opportunity was given to the Plaintiff to be heard.
Upon his arrival, the Plaintiff's solicitor apologised to the Court, and explained, from the Bar table, that since 28 June 2019, his firm had not been able to obtain instructions from the Plaintiff, despite many attempts to do so. He accepted that there had not been compliance with the UCPR in relation to the Notice of Intention to Cease to Act and he remained in Court: Tcpt, 18 July 2019, p 5(25) - p 7(12).
The Plaintiff's solicitor then made an application for an adjournment of the notice of motion which was opposed by the Defendant: Tcpt, 18 July 2019, p 7(10-14). (Of course, he did not have explicit instructions to make such an application. The application was made, presumably, on implied instructions to act in the best interests of the Plaintiff as the solicitor's then client.)
I was reminded that the Plaintiff was aware that the Defendant's notice of motion had been listed for hearing as he had been present in Court, with his solicitor and counsel when the notice of motion was listed for hearing. His solicitors had been served with the outline of submissions that highlighted the inadequacy of the evidence to support the Plaintiff's case, before the Court. His solicitors had also been reminded about the failure to provide submissions in accordance with the Court's directions.
In Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 27, it was said, at [103], that it will almost always be necessary to put forward an explanation for a delay if an adjournment is sought in proceedings.
There was no real basis advanced for the adjournment other than the failure of the Plaintiff to provide instructions, which failure was said to be because of his ill health, the precise details of which ill-health, particularly in the period between 28 June and 18 July 2019, was not the subject of any evidence. Furthermore, what was said to be the medical evidence annexed to the Plaintiff's affidavit of 6 June 2019, did not relate to the entire period after the date of the report, to which report reference has been made.
Indeed, other than speculation by the solicitor, there was no evidence, at all, going to the reasons why the Plaintiff had not communicated with his solicitor.
In any event, the medical conditions from which the Plaintiff was said to suffer appear to be long standing. The Court can have little confidence that during an adjournment of the hearing of the notice of motion, the Plaintiff's suggested continuing health difficulties would be relieved. Furthermore, notably the medical report to which reference has been made, does not state that the Plaintiff is physically unfit to give instructions. Nor does it state that he is disabled from attending upon his legal representatives, or, otherwise, from answering questions which they might ask of him. Finally, the report which was dated 6 June 2019, concluded that "he is not in the position to complete all of the works for his legal matter for another 3 weeks". That period "to complete all of the works" was granted by the Court, and additionally, a further period of almost 3 weeks had passed before the hearing.
Although the Plaintiff's alleged medical conditions may have made it difficult for him to present his case on his own, his asserted conditions do not appear to be such as to preclude him from preparing, or from giving instructions for his legal representatives to prepare, for the defence of the notice of motion.
Furthermore, there was no evidentiary basis to enable me to conclude that there was any reasonable prospect of the Plaintiff being able, or willing, to give instructions to his solicitors during the period of any adjournment, if an adjournment were granted. He has had since about 9 April 2019, that is, over three months, to provide detailed instructions to his solicitors. Even before that time, the matter had been adjourned, several times, at his request.
As well, no satisfactory explanation, in my opinion, was given for the making of the application for an adjournment at such a late stage, particularly in circumstances where the proceedings had been case managed, and where the Defendant's notice of motion had been on foot for some time. By way of comparison, since being served with the Summons, the Defendant has conscientiously attended to defend the proceedings.
Finally, in light of the Plaintiff's evidence about his financial circumstances, I considered that the prejudice to the Defendant could not be alleviated, at least in part, by any order for costs.
In determining whether to adjourn these proceedings, the Court, like parties and their legal representatives, are bound by the principles set out in Part 6 of the Civil Procedure Act 2005 (NSW), including s 56(1) which provides that "the overriding purpose of the Act and the rules of court in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings." Of course, the Court is also required to follow the dictates of justice as set out in s 58 of the Civil Procedure Act and to take into account the provisions of ss 56 and 57. The dictates of justice require the Court to also have regard to the interests of the Defendant, who opposed the adjournment, and, who, understandably, would like to have the proceedings, which she says cannot succeed, resolved as expeditiously as possible and at the least possible cost.
I also remember the effect of case management sometimes may be the cause of disadvantage to a party, in order to promote the community's interest in the delivery of justice. Here, effectively, half a day in the running list had been set aside for the hearing of the Defendant's notice of motion, after the proceedings had been on foot for nine months. If the hearing was adjourned, another half day of Court time would need to be found at some future date.
In the circumstances, the Plaintiff's application for the adjournment was refused as I was not persuaded that it was in the interests of justice to grant the adjournment.
The notice of motion then proceeded with counsel for the Defendant referring to all of the relevant documents in the Court file, including the Summons, the two affidavits of the Plaintiff to which reference has been made, and the Defendant's affidavit. He then made oral submissions in support of the notice of motion supplementing his written submissions, upon which he relied.
The solicitor for the Plaintiff was not able to say too much in opposition. He submitted that the question of eligibility, particularly, whether or not the Plaintiff was wholly or partly dependent upon the deceased, was a question of fact which should be left to a hearing.
When asked to identify factors warranting the making of the Plaintiff's application, he referred to the Plaintiff's evidence about the family business. However, he was unable to respond, in any meaningful way, to the question why the Plaintiff would be a natural object of testamentary bounty, particularly bearing in mind the long period of estrangement between the Plaintiff and the deceased.

The Statutory Regime

UCPR r 13.4, relevantly, provides: "(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
A matter that is "frivolous" is one that is without substance, groundless or fanciful. A "vexatious" proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose: Peter Taylor SC et al, Ritchie's Uniform Civil Procedure NSW (2005, LexisNexis Australia) at [13.4.2].
Recently, in In re Rules of the Supreme Court 1971 (WA); ex parte Nikoloff [2019] WASC 263, Hill J wrote, at [21]: "Proceedings will constitute an abuse of process if they are clearly doomed to fail or are plainly unsustainable. In the context of an application to strike out a claim or pleading the terms 'frivolous' and 'vexatious' have often been used interchangeably. For example, an action is frivolous if it is obviously (or plainly) unsustainable and an abuse of the process of the court. It may for the same reason be categorised as vexatious. An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed. Apart from the hopeless case - those that are obviously untenable or manifestly groundless - an action may be vexatious due to the motive of the litigant. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. So too proceedings are vexatious if they are brought for collateral purposes. A proceeding will also be vexatious if it is productive of serious and unjustified trouble and harassment." (citations omitted)
A claim for a family provision order is not immune from the application of UCPR r 13.4 that it be summarily dismissed: Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104, per Lindsay J, at [103]; Brindley v Wade [2019] NSWSC 303, at [12]. Whilst not encouraging such applications, there may be cases in which an abbreviated procedure, taken with the affidavit evidence, will sufficiently expose the facts and the legal issues so that the question whether relief in accordance with the rule relied upon is appropriate can be determined.
As Lindsay J also wrote, at [104]: "Where a family provision claim has not been made within the time limit prescribed by the Succession Act 2006 NSW, section 58 (or perhaps where the claimant is required by section 59(1)(b) of the Act to satisfy the Court that there are factors which warrant the making of the claim) the nature of the claim might lend itself more readily to an application for summary dismissal than a case unconstrained by sections 58 and 59(1)(b). Be that as it may, the discretionary, evaluative decision-making required of the Court under section 59 of the Act, taking into account the facts known to the Court at the time of decision, is such as to counsel caution against an order for summary dismissal. The caselaw noted in the preceding paragraph demonstrates a consciousness of a need to ensure that, before a family provision claim is determined, the claimant has had a reasonable opportunity to place his or her evidence before the Court with the benefit of discovery directed to the topics identified in paragraph 9.1(b)-(f) and (h)(iv) of Practice Note SC Eq 7 or access to the records of the executor or administrator of the estate the subject of the claim."
The relevant principles that apply in relation to UCPR r 13.4 were summarised by the Court of Appeal, constituted by Beazley, McColl, Macfarlan and Barrett JJA and McClellan CJ in CL, in Shaw v State of New South Wales (2012) 219 IR 87; [2012] NSWCA 102. Barrett JA gave the only judgment (with which the other Judges of Appeal agreed).
At [30]-[32], his Honour wrote: "... There is no dispute that the central inquiry is that indicated by Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62; General Steel Industries Inc v Cmr for Railways [1964] HCA 69; (1964) 112 CLR 125 and, more recently, Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 where Gaudron, McHugh, Gummow and Hayne JJ said at [57]: Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. That formulation has since been re-affirmed: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24]; and, while it was said in Batistatos that the General Steel formulation should not be given 'canonical force', it is convenient, for present purposes, to refer to the criteria laid down by the case law I have mentioned as the 'General Steel test'. The question is therefore whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated."
There is a summary of relevant propositions in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405, at [196]-[200], including a reference to the need to take the plaintiff's case at its highest, accepting the truth of all allegations in the claim, and the ranges of meaning which the assertions of fact are capable of bearing. Also see, Ugur v Attorney General for New South Wales [2019] NSWCA 86, at [71].
In Spencer v Commonwealth (2010) 241 CLR 118, at 140; [2010] HCA 28, at [55], the plurality (Hayne, Crennan, Kiefel and Bell JJ) interpreted the various formulations expressed by Barwick CJ in General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at 129-130; [1964] HCA 69, as different ways of saying "that the case of the plaintiff is so clearly untenable that it cannot possibly succeed".
In Spencer v Commonwealth, French CJ and Gummow J stated at [25]: "Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the court has formed the view that the applicant is unlikely to succeed on the factual issue."
Reference should also be made to the judgment of Leeming JA (with whom Macfarlan and Simpson JJA agreed) in Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83, at 92; [2017] NSWCA 19, at [30] ("Perera"): "I would reject the first aspect of Mr Perera's complaint, based on the alleged failure expressly to identify the cautious approach to summary dismissal. There are of course a variety of formulations of the applicable test where a defendant applies for the summary intervention of the court to prevent a plaintiff's case being determined in the usual way at trial. Barwick CJ collected some in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129: 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action' and 'be manifest that to allow [the pleadings] to stand would involve useless expense'. In part that variety stems from whether the application is made in the court's inherent jurisdiction or under the rules (see Dixon J's analysis in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92), which may in turn affect the material available to the court. In part it turns on differences in the rules of different courts, and in particular on the relaxation of the test which has occurred in some courts: see Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [56]. But for present purposes, two matters are clear. One is that common to all the various formulations is the need for 'exceptional caution', as was explained in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] and Spencer at [53]-[55]. The other is that the inquiry is as to the demonstrated certainty of the outcome of the litigation, as opposed to its prospects of success.
Also in Perera, at [30], Leeming JA referred to the passage, at [55], in Spencer v Commonwealth to which I have referred above.
In light of the authorities, there was no dispute, by counsel for the Defendant, that summary dismissal is a jurisdiction that may only be used in a clear case and that it was only if a clear decision could be reached, which could not be affected by any evidence led at trial, that the order sought may be made: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, at 84; [1949] HCA 1, at [26], per Latham CJ. Such an order is not appropriate where there is any serious conflict as to any matter of fact: Sidebottom v Cureton (1937) 54 WN (NSW) 88; Attorney General In and for the State of New South Wales v Markisic [2012] NSWSC 433, per Schmidt J, at [36]. The Court must bear in mind the seriousness of the step of summarily dismissing proceedings and the need to address the relevant question, which is whether, on the evidence as it might unfold, an arguable case is established.
The Court also remembers that "common experience teaches that it is usually more efficient and just to consider the viability of the cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence": Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272, per Kirby P, at 2.
Counsel for the Defendant also accepted that in considering whether the onus which falls upon the Defendant has been met, the case advanced by the Plaintiff must be approached on the basis that, at this stage, the evidence sought to be relied on must be taken at its highest: Bodikian v Sproule [2009] NSWSC 599; (2009) 72 ACSR 598, at [2]-[4]; Attorney General In and for the State of New South Wales v Markisic [2012] NSWSC 433, per Schmidt J, at [37], and that the Court should proceed upon the basis that the Plaintiff would be able to prove the facts to which he averred in the affidavits read on the notice of motion.
Whilst I do not suggest that family provision claims are ripe for applications for summary dismissal, indeed, generally they are not, what has recently been written by Ward CJ in Eq., in Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843, at [172], should be remembered: "…that leads to the vexed issue of costs. There is an understandable concern that costs incurred in proceedings of this kind not be disproportionate to the nature of the proceedings and the size of the estate (see for example the recognition by Basten JA in Page v Page [2017] NSWCA 141 at [20], in the context of the family provision jurisdiction, of the need not to encourage litigation where costs often reach a high proportion of the value of the estate; and his Honour's concern expressed in Harris v Harris [2018] NSWCA 334 (Harris v Harris) (at [18]) that what his Honour regarded as the Court's "willingness to entertain comparatively expensive litigation of this sort" might well have encouraged the pursuit of such claims)."
The Defendant's written outline of submissions does not identify, specifically, which of sub-paragraphs (a), (b) or (c) of UCPR r 13.4 is relied upon. However, it seems to me that all of the sub-paragraphs should be considered.

The Plaintiff's substantive claim

There can be no dispute that, in this case, that at a hearing of the substantive proceedings, the Plaintiff will have to establish that: 1. he is an eligible person - relevantly, a person who was, at any particular time, wholly or partly dependent on the deceased person, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member; 2. as a person who is an eligible person by reason only of paragraph (e) of the definition of "eligible person" in s 57, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application; 3. "sufficient cause" has been shown for the time for the making of his application for a family provision order to be extended until the date of the Summons (plainly, consent by the Defendant has not been given); 4. at the time when the Court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made by the will of the deceased; 5. an order for provision out of the estate, or notional estate, of the deceased ought to be made for his maintenance, education or advancement in life, having regard to the facts known to the Court at the time the order is made.
Because the whole of the estate has not been distributed, there remains an estate with an estimated gross value of $607,000. It is unlikely that the Plaintiff's claim, and the costs of the proceedings, would exceed that amount.
If the Plaintiff were to submit that the estate were insufficient, then, there will have to be an order designating property as notional estate. Because the application for his family provision order is made later than 12 months after the date of the death of the deceased, he will also have to establish (i) the property to be designated as notional estate is property that was the subject of a distribution from the estate of the deceased person; (ii) the person who holds the property holds it as a result of the distribution as trustee only, and (iii) the property is not vested in interest in any beneficiary under the trust, or (b) it is satisfied that there are other special circumstances that justify the making of the notional estate order: s 90(2) of the Act.

Determination

In coming to my conclusions, I have assumed that relevant factual matters going to his claims asserted in the affidavits of the Plaintiff will be established. This assumption limits, although it does not extinguish entirely, the concern, expressed by Mukhtar AsJ in Jackson v Newns [2011] VSC 32, at [11] that: "…summary disposals in this type of case are rare. That is because facts in family claims are invariably in dispute to some appreciable degree, and a fair bit is at large in a field of discretion. The claims usually involve a close examination of human relationships, interpersonal affairs, family stories, beliefs, perceptions, expectations, people's station in life and impalpabilities in life. The Court's evaluation of the testator's moral duty ... and the exercise of a discretion that involves some value judgment means that ordinarily family claims are best left to trial to determine their sustainability."
In what follows, I have also remembered that the Court, in this notice of motion, is considering all these issues, not as the Court would at the hearing, but on an application for summary dismissal. That application for summary dismissal does not permit, or require, determination of the Plaintiff's claim for a family provision order, or any element of that claim, but rather requires a clinical assessment of the question whether the claim is triable, in the relevant sense.
The Defendant argues that the Plaintiff does not now, and, if there were a hearing, would not then, on the material filed, have any prospect of establishing the matters for determination.
I have discussed the relevant principles relating to eligibility and factors warranting the making of the making of an application in Page v Page [2016] NSWSC 1218. An appeal from this decision, which was dismissed, is Page v Page (2017) 16 ASTLR 331; [2017] NSWCA 141.
In the Court of Appeal, in Page v Page, in discussing the issue of dependency, Basten JA wrote, at [10]-[15]: "…The judge characterised the situation as not one 'where the deceased could be regarded as having been in loco parentis.' This last phrase is important; the obligation to provide for a child, including from one's estate, may be described as primarily a parental obligation. Unless another person takes over those social, moral and legal obligations, there is no relevant relationship of dependency which would require provision from the estate of the carer. Thus, it would not be in accordance with social mores to expect a live-in nanny to carry a burden of providing for the children for whom he (or probably she) cared, whilst the parents (or at least one of them) were (or was) alive and responsible for the arrangements. The fact that there may be a commercial arrangement between the parents and the nanny would not prevent there being a relationship of dependency (in the broad sense of the term) as between the nanny and the young children. However, that kind of dependency does not qualify for the purposes of the definition of an eligible person because it carries with it no ongoing obligation to provide for the proper maintenance, education or advancement in life of the child or children. The same reasoning applies in relation to siblings. The fact that the eldest sibling (or sometimes the eldest female sibling) is given a level of responsibility for younger brothers and sisters does not create an obligation to continue to provide for their proper maintenance, education or advancement in life, at least where there is a parent or parents who maintain responsibility for the children and in fact provide for them. That kind of dependency is not the kind of dependency recognised by the definition of eligible persons, nor does the nature of the relationship change because it can be said that the children are partly dependent upon the eldest sibling. Were it otherwise, there would be a significant number of cases in which Pt 3.2 of the Succession Act, dealing with family provision orders, would become a younger siblings' charter, allowing claims to be made against the estate of an older sibling. In some cases, there may be numerous younger siblings who could make such claims. There are two primary bases upon which such implausible or absurd results could be avoided without adopting a limiting view of the concept of dependency in the Act. The first is the requirement that, in relation to this category of eligible persons (and two other categories potentially more remote than the primary categories of spouse or child of the deceased person), the court must also be satisfied that, 'having regard to all the circumstances of the case … there are factors which warrant the making of the application'. However, there is little to be said for the view that dependency should be accorded a broader construction than might otherwise appear appropriate, given the statutory context, because there is a further precondition to the making of a family provision order. That, in turn, is so for two reasons. First, as noted by McLelland J in Re Fulop Deceased, '[t]he effect and utility of this subsection are obscure.' Secondly, as further noted by McLelland J, the very vagueness of the condition is likely to render it something which can be determined only after all the evidence has been called, at least by the applicant, and thus not suitable to be addressed as a preliminary question. There is little to favour a construction of a precondition to an order which makes it uncertain and (at least in some cases) prevents an application being disposed of on a preliminary basis." (Omitting footnotes)
Sackville AJA wrote at [99]-[101]: "As has been noted, a person applying for a family provision order must establish that he or she is an 'eligible person' within the definition in s 57(1) of the Succession Act. In the present case, the appellant had to establish that he is a person who was, at any particular time, wholly or partly dependent on the deceased (s 57(1)(e)). In interpreting this jurisdictional requirement, it is necessary to bear in mind that the High Court has characterised family provision legislation as "remedial in character and therefore to be construed so as to give the most complete remedy which its phraseology [permits]". Thus the Court should be alert not to place a restricted construction upon the legislation. No question of construction arises in the present case since Mr Coleman did not take issue with the primary Judge's construction of s 57(1)(e) of the Succession Act or his Honour's statement of the relevant principles. It is convenient to refer to these principles briefly: 1. The word 'dependent' is an ordinary English word and whether a person is wholly or partly dependent on another is a question of fact. 2. The factual question can be complex and involve consideration of many elements. Accordingly, different minds might well differ in their approach. 3. While a common form of dependence is dependence on another for the material necessities of life, this is not the only form recognised by s 57(1)(e) of the Succession Act. For example, where a parent or step-parent provides a child who has no independent financial resources with services essential to well-being, the child might be found to have been wholly or partly dependent on the parent or step-parent. 4. Dependency involves the satisfaction of a need, but the need is not restricted to the requirements of basic necessities or sustenance. 5. The word 'partly' in the definition of 'eligible person' is a word of 'some elasticity'. It does not necessarily mean 'substantially', but rather 'more than minimally' or perhaps 'significantly'. 6. Dependency is not necessarily correlative with a legal duty to maintain, although such a duty is a factor to take into account. Nor are dependency and actual support necessarily correlative. Hence there may be cases where support has been provided without dependency, for example where the support is provided for a short time or for a particular purpose or where an adult child provides occasional domestic assistance to an aged parent." (Omitting footnotes)
Other than the passage referred to in the Plaintiff's affidavit, there is a paucity of evidence that the deceased provided much by way of financial support, support otherwise, by way of comfort or solace, or guidance, generally, to the Plaintiff. There is evidence that the parents of the Plaintiff and the deceased, at all times, continued their role as such, providing for their children.
Taking the Plaintiff's evidence, at its highest, I am satisfied that any financial assistance provided by the deceased to the Plaintiff was no more than minimal and was not significant. It was also a long time prior to the death of the deceased. The level of assistance, without more, could not justify a finding that the Plaintiff was partly dependent on the deceased. Nothing more is suggested by the Plaintiff in his evidence.
Furthermore, there is no evidence that the deceased, personally, provided the Plaintiff with financial support from his own resources. It seems to have been money that came from "the family business". In this regard, one cannot conclude that the Plaintiff was dependent on the deceased in the relevant sense.
The decision to be made by the Court on the eligibility of the Plaintiff is a "jurisdictional" question, in the sense that the application must be dismissed if it is answered unfavourably to the Plaintiff. The question whether the Plaintiff has demonstrated to the satisfaction of the Court that he was wholly or partly dependent upon the deceased is an evaluative one. Of course, the eligibility of the Plaintiff is also a factual decision. It is unlikely that the hearing will provide a different, or better, forum for an argument of a more extensive kind on this question.
It is to be remembered in this regard, that the Plaintiff has been given several opportunities to serve further affidavit evidence in support of the substantive claim and has not provided any such evidence.
It is equally unlikely that any cross-examination of the Defendant will provide any further evidence on this topic. It is to be remembered that the dependency relied upon is dependency when the Plaintiff was a teenager and, perhaps, a little older. It is not likely that the Defendant would be able to offer any evidence on this topic.
Having read all of the evidence of the Plaintiff, and taking it at its highest, I am not satisfied that he has established a triable issue on the question of eligibility - namely that he was wholly or partly dependent upon the deceased. Therefore, he will not be able to establish eligibility and his claim must fail.
But even if I am wrong, in my view, the Plaintiff has not identified, in his evidence, any factors that would warrant the making of his application.
In Page v Page, I wrote at [172]-[183]: "The Act does not specify the 'factors which warrant the making of the application'. As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138 at [16], '[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement'. Factors warranting the making of the application were described by McLelland J (as his Honour then was), in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 as being: '… [F]actors which when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased.' In Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA, at 252, after setting out and approving the statement, added: 'To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition.' These principles have been applied, at first instance, for many years. However, in Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal in which Fitzgerald AJA delivered the principal judgment, there seems to be the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian. In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686 at [9]: 'In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ('there are factors') is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination.' More recently, in Diver v Neal [2009] NSWCA 54, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1), at [8]: 'As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681.' In Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, wrote, at [62]-[64]: 'It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope. However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition. On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time.' In Sassoon v Rose [2013] NSWCA 220 at [15], the Court of Appeal referred to the fact that the trial Judge (Macready AsJ) had: 'correctly identified the relevant principles as those stated by McClelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal at [8]. Those "factors" are ones which, when added to the facts which render the applicant an "eligible person" (in Ms Sassoon's case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition.' In Porthouse v Bridge, Bryson AJ commented, at [7] and [9]: 'This provision gives no clear indication of the nature of the factors which should be regarded as warranting the making of the application. Decision whether there are factors which warrant the making of the application is committed to the Court in extremely general language; the Court is to have regard to all the circumstances of the case (whether past or present). The effect is that a very broad power is given to the judge who hears the case to recognize and assess the significance of the circumstances of the case and what regard should be paid to them, what the factors are and what they warrant. There may be very cogent factors which demonstrate that the making of the application is warranted, but it is unlikely that this will often be the case, and the section commits to the Court a power of determination which is difficult to distinguish from a discretion of the broadest kind. … The recognition of factors and their weight is left to the determination and opinion of the Judge. In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination.' In Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646, at [4]-[6], Basten JA wrote: 'The primary category of eligible people are spouses, including those in a de facto relationship with the deceased at the time of death and a child of the deceased. Other eligible persons (a category including the claimant) are required to satisfy the court that "having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application": s 59(1)(b). The claimant must also satisfy the court that at the time when the court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made by the will of the deceased: s 59(1)(c). Subsection (1)(c) assumes that some provision should have been made for the claimant by the will of the deceased; subs (1)(b) treats the primary category of eligible persons as naturally satisfying that assumption, whereas the secondary category (into which the present claimant falls) need to justify the assumption: see, in relation to relevantly identical provisions in s 9 of the Family Provision Act 1982 (NSW), Re Fulop Deceased; Fulop v Public Trustee (1987) 8 NSWLR 679 at 681 (McLelland J). That approach obtains support from the provisions of Ch 4 of the Succession Act dealing with intestacy. Those primarily entitled to a distribution from the estate of an intestate are a surviving spouse (ss 110-113) and the deceased's children (s 127). A grandchild has an entitlement, but only a presumptive share of a child of the intestate who predeceased his or her parent: s 127(4).' Finally, I refer to Yee v Yee [2016] NSWSC 360 at [199]-[200], in which Slattery J wrote, after referring to the authorities: 'It seems to me looking at the development of this line of authority and especially what the Court of Appeal said in Evans v Levy, that the aspect of prospects of success, mentioned in Brown v Faggoter as a possible factor warranting, cannot be a decisive factor on its own. The authorities do not suggest that the applicant's prospects of success cannot be taken into account as a factor warranting. This seems to be self-evident from the reasoning of McLelland J in Re Fulop and from Churton v Christian, which both show that there must often be a substantial degree of overlap in practice between (1) the factors warranting, and (2) those matters which must be addressed in determining whether the testator has made adequate provision for the applicant. In Diver v Neal [2009] NSWCA 54, Basten JA (with whom Allsop P and Ipp JA agreed) said that where factors warranting were to be proved, "each issue to be determined involved identification of the relationship over the course of their lives'. It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Young JA and Slattery J as correct, and propose, in the circumstances, to follow their decisions."
In the Court of Appeal, there was not very much discussion about what I had written as to the relevant principles as there was no error in my finding regarding eligibility, and, therefore, it was not necessary to decide whether there was error in finding that there were no factors warranting the making of the application.
In the present case, there are simply no factors warranting the making of the Plaintiff's application. The tenuous and distant (in time) nature of his dependency (assuming that it could be established) on the deceased would lead to a conclusion that there were no circumstances warranting the making of the Plaintiff's claim. As importantly, it appears that there was very little, if any, contact between the Plaintiff and the deceased for more than 40 years prior to the death of the deceased (at least since the 1970's). There is nothing in their relationship over that lengthy period that creates an obligation, on the part of the deceased, to make provision for the Plaintiff in his Will. It is impossible to conclude that the Plaintiff would be able to establish any factors which, when added to the facts which render him an eligible person, give him the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition.
Having read all of the evidence of the Plaintiff, and taking it at its highest, I am not satisfied that he has established a triable issue on the question of factors warranting the making of the application.
Next, I deal with the extension of time issue. Strictly, it is unnecessary to deal with this aspect, since there would be no reason to make an order extending the time for the making of the application if the Plaintiff is not an eligible person or was not able to establish factors for the making of his application.
However, for completeness, I shall determine whether there is a triable issue on this aspect also. The Summons is dated 16 November 2018, although it was filed on 28 November 2018. There is no other evidence supporting what was written by the Plaintiff in his second affidavit. The date of the deceased's death was 16 November 2018, which means that, at worst, the Summons was filed less than 2 weeks later than the time prescribed by the Act for the making of the application.
Again, taking the Plaintiff's evidence at its highest and for the purposes of the Defendant's notice of motion accepting that he would be able to establish that there was a difficulty filing the Summons because of his application for the deferral/exemption of the filing fee, subject to other matters, I would not dismiss the proceedings upon the basis that he would not be able to establish "sufficient cause" as required by s 58(2).
Finally, although it is strictly unnecessary to do so, I turn to whether there is enough evidence to satisfy me that the Plaintiff would be able to satisfy the Court that there is a triable issue on the question whether, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made by the Will of the deceased.
I am simply unable to conclude that the Plaintiff has established such a triable issue. In this regard, it is not possible to see any basis to conclude that the deceased had a social, domestic, or moral, obligation to make provision for the proper maintenance or advancement in life of his younger brother with whom he had no contact for over 40 years. The Plaintiff's application amounts to little more than a contention that an obligation was owed to him because he was the deceased's brother and because the deceased had been favoured by their parents. Neither is a satisfactory basis for the Court to be satisfied that the deceased owed him an obligation to make any provision for him. There is simply no evidence to lead to the view that the deceased's undoubted freedom of testamentary disposition was affected by any circumstances leading to having to make provision for the Plaintiff.
In all the circumstances of this case, and bearing in mind the constraints operating upon the Court in determining the Defendant's application, I am satisfied that the continuation of the proceedings would be an abuse of process and frivolous, in the sense that the Plaintiff's case is without substance. In my view, it cannot possibly succeed. Exercising the "great care" and "exceptional caution" that is required, and remembering that to order summary judgment should be sparingly employed, the application of the Defendant for summary dismissal of the Plaintiff's claim must succeed and the Plaintiff's Summons should be dismissed with costs.
The Court orders that: 1. Denise Buckley be joined as a party/Defendant to the proceedings. 2. The rules requiring the Plaintiff to file an amended Summons be dispensed with. 3. The proceedings be dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). 4. The Plaintiff pay the Defendant's costs, calculated on the ordinary basis, of the proceedings, including the costs of the Defendant's notice of motion filed 22 May 2019. 5. The Defendant's costs, calculated on the indemnity basis, of the proceedings, including of the notice of motion filed 22 May 2019, to the extent that those costs are not recovered from the Plaintiff, be paid, or retained, as the case may be, out of the estate of the deceased.

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Family Provision Act 1982(NSW)

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