Plaintiff v Defendant

1 This is an appeal against an order made by Englefield JR on 19 October 2020 dismissing a proceeding brought by the plaintiff pursuant to Part IV of the Administration and Probate Act 1958 (the Act) for provision from the estate of Irene May Ellis (the deceased).[1] The deceased, who died on 10 January 2019, was the plaintiff's aunt.

2 The order was made as a result of a successful application for summary judgment brought by the defendant, the co-executor of the deceased's estate. Probate of the deceased's last will dated 30 November 2012 (the will) was granted to the defendant on 9 April 2019.

3 In her reasons for judgment delivered on 28 September 2020,[2] the Judicial Registrar found that the plaintiff's application for further provision had no prospects of success because, at the time of the deceased's death, she did not have any degree of dependency on the deceased within the meaning of s 91(4)(d) of the Act.[3] As a result of that finding, by operation of s 91(5)(b) of the Act,[4] there could be no order for provision under the Act, rendering the proceeding futile.

4 Order 84 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) provides for a right of appeal from a judgment, order or direction of a judicial registrar.[5] An appeal is to be conducted by way of hearing de novo.[6]

5 In Allesch v Maunz,[7] the High Court identified that the 'critical difference' between an appeal conducted by way of hearing de novo and an appeal by way of rehearing is that, in the latter, 'the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error', whereas in relation to a hearing de novo, 'those powers may be exercised regardless of error'.[8] After considering these and other relevant statements of principle, Sloss J in Bendigo and Adelaide Bank Ltd v Grahame[9] summarised the position as follows:[10]

Accordingly, as a matter of practice and procedure, what is contemplated by a hearing de novo is that on the hearing of the appeal, the party who was the applicant before the Judicial Registrar begins, and the appeal is determined on the evidence relied on before the judge and not that relied on before the Judicial Registrar, and the judge determines the appeal without being fettered by the decision of the Judicial Registrar, though giving such weight to that decision as appears proper.

Plaintiff's application under Part IV of the Act

6 The plaintiff's application for further provision was supported by an affidavit made by her and dated 15 November 2019. On the appeal, the plaintiff also relied on an affidavit sworn by her solicitor dated 5 May 2020.[11]

7 The defendant relied on affidavits dated 28 July 2020 and 14 May 2021 by Domenico Madrigrano, a senior trust manager with the defendant who has carriage of the administration of the deceased's estate. Those affidavits set out the financial position of the estate.

8 The large majority of the estate is comprised of three properties located in Albert Park which collectively are estimated to be worth $12,350,000.[12] In accordance with the provisions of the will, the deceased's three god-daughters, as described in the will, are each devised one of these properties.

9 On 17 December 2003, the deceased executed an enduring power of attorney appointing Trust Company (Australia) Ltd (of which the defendant is the successor) and Bruce Graham Parker as her attorneys.

10 In 2016, the attorneys applied to the Victorian Civil and Administrative Tribunal (VCAT) for authority to sell one of the deceased's properties to fund costs associated with her personal care and accommodation. On 31 October 2016, VCAT published an advisory opinion endorsing the sale of one of the deceased's properties, being that located at 32 Page Street, Albert Park (32 Page Street). The property was sold in February 2017. The net proceeds of sale received by the deceased was $1,342,420.13.

11 If 32 Page Street had been owned by the deceased at the date of her death, it would have been devised to the plaintiff. Clause 8 of the will provides:

I GIVE my interest in the property situate at and known as 32 Page Street, Albert Park, Victoria ("32 Page Street") as and if owned by me at the date of my death to my niece TANYA MARIE DUNN ("Tanya") if she survives me. If I am not the registered proprietor of 32 Page Street as at the date of my death (including because I have sold 32 Page Street since the date of this my Will) or if I am the registered proprietor but prior to my death I have signed a binding contract to sell 32 Page Street, I DIRECT my Trustee to pay to Tanya if she survives me, a sum of money in lieu of the gift of 32 Page Street ("the Sum"). The Sum shall be calculated as being the amount of the consideration on the registered transfer of land on which I am named as transferor of 32 Page Street less the amount of the discharge of any mortgage, charge or debt secured over 32 Page Street (including any bank fees relating thereto) as at the date of such transfer (being the settlement date), and less any capital gains tax paid or payable by me as a result of the sale of 32 Page Street. I DECLARE that the decision of my Trustee in determining the amount of the Sum shall be final and binding on all beneficiaries of this my Will

12 In November 2018, the defendant made application to VCAT for orders authorising the sale of another property to fund her accommodation and care needs and for the defendant to make application to this Court for a statutory will for the deceased. The defendant informed VCAT that an application for a statutory will should be brought to address the fact that, as a result of the sale of 32 Page Street, the gift of that property under the will had effectively been adeemed.

13 Although VCAT made orders to the above effect on 21 November 2018, it would appear that an application for a statutory will was not commenced before the deceased died on 10 January 2019.

14 It is apparent from the terms of clause 8 of the will set out above that, in circumstances where, as happened, the deceased was not the registered proprietor of that property at the time of her death, the clause gives to the plaintiff a pecuniary legacy. Counsel for the defendant informed the Court that the value of that legacy was about of $1.342 million. [13]

15 It would appear, however, that there is likely to be very little left in the estate after the distribution of other properties and chattels, and the payment of the defendant's commission and legal expenses. Counsel for the defendant estimated that, after these distributions and payments, only $18,000 would remain, which the pecuniary legatees - and the plaintiff - would share on a pro rata basis.

16 A brief summary of the plaintiff's claim as to how it is contended that the will fails to make adequate provision for her was set out in the following paragraph of the plaintiff's submissions filed in opposition to the defendant's application for summary judgement:

It is a very large Estate in the order of $12 million. Whilst the Plaintiff has a modest house in Oakleigh, she has recently undergone a radical mastectomy in Los Angeles and the cost of medical treatment in USA, related care and loss of wages will soon deplete her meagre savings and most like the equity in the property. The other beneficiaries have no close relationship to the deceased in the same way that the plaintiff does and it is reasonable to say that of the houses that constitute the Estate of the deceased, the plaintiff should at least receive one or the monetary equivalent of one.[14]

17 It was common ground that, in considering the defendant's application for summary judgment, the plaintiff's evidence should be accepted and taken at its highest. On that approach, the factual setting in which the application is to be determined is as detailed below.

18 The plaintiff is 49 years old. Her father and mother died in 2005 and 2012 respectively. Her only sibling, a sister, died in 1990.

19 The deceased was the plaintiff's paternal aunt. The plaintiff described the deceased as 'a constant presence in our family lives as children from when we were very young'. The deceased babysat the plaintiff and her sister; at the deceased's house, they would play snooker and play with stray cats rescued by the deceased. The plaintiff's family spent Christmas with the deceased. Every Christmas and birthday, the deceased would give the plaintiff a gift of $100. The deceased also paid for the plaintiff's horse riding, including agistment and gear. The plaintiff helped out at the deceased's billiards hall; the deceased taught her how to play billiards.

20 When the plaintiff was about 12 years old, her immediate family decided to move to Queensland. After the sale of the family home in preparation for the move, the plaintiff and her family lived with the deceased for six months. After moving to Queensland, the plaintiff and her family would travel to Melbourne and stay with the deceased every Christmas and most school holidays.

21 After the plaintiff's immediate family relocated back to Melbourne, they stayed with the deceased for about six months while looking to purchase a residential property.

22 After working in Brisbane and Sydney, the plaintiff moved to Melbourne to work as a camera assistant with the Australian Broadcasting Corporation. During this time she lived with the deceased for about a year. The plaintiff then worked with a number of other television broadcasters in Melbourne and Sydney.

23 In 2009, the deceased paid off the plaintiff's credit card debt of $25,000.

24 From around mid-2009 until her mother's death in 2012, the plaintiff and her mother lived with the deceased. At some point, the plaintiff became the deceased's primary care giver, taking her to medical appointments.

25 The plaintiff deposed that, 'After my mother died, in 2012 I had the opportunity to advance my career overseas to Los Angeles' [sic]. The plaintiff then relocated to Los Angeles and obtained work in the film and television industry. She kept in regular contact with the deceased and deposed as follows:

When I left to go to Los Angeles I had kept regularly in contact with Dolly weekly, sometimes daily. I phoned and spoke to Dolly once a week from Los Angeles. She was always a positive person. It had always been my intention to return from Los Angeles if Dolly wished me to, but unfortunately she became ill and went into care. It was very emotional whenever we spoke about my returning from Los Angeles.

I always said to friends in Los Angeles that I would move back to Dolly's house and it always brought tears to my eyes when she asked me this question as I realised how much she missed me and I felt that I was her only family. My difficulty was, it was hard to obtain employment back in Australia.

When I left Melbourne to go and live in Los Angeles I left a large number of my possessions in the garage at Dolly's. I have not seen those possessions since and it was my intention always if I returned that I would pick up those possessions again. I also had a spare key to her house at Kerferd Road. The only other person who had a key was her carer.

She did want me to come back and live with her and she was always upset that I had gone to Los Angeles because I was her only family. I visited her in July and August of 2018 and it was a very emotional time. She was in a hospice and she was ill and she asked me to come back to live with her and I said that I would come back. My job situation in Los Angeles was difficult and there was no immediately available work in Australia so I had determined that I would come back in early 2019. But, by that time, she was ill in bed and eventually died.

26 The plaintiff has continued living in Los Angeles since 2012. She works as a writer, producer and editor. She earns between approximately US$1,200 to US$1,600 per week, sometimes working three days a week and other times working seven.

27 The plaintiff suffers from ill health. She experiences chronic migraines which sometimes leave her bedridden and require medication. She was diagnosed with breast cancer in August 2019, and underwent a double mastectomy in November 2019. The plaintiff's evidence is that her prognosis is uncertain, she may never be able to return to work, and her life expectancy may be shortened.

28 The defendant applied for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010, contending that the plaintiff's claim for further provision under Part IV of the Act had no real prospect of success.

29 A claim will properly be described as having no real prospect of success if it has a 'fanciful', as opposed to a 'real' prospect of success.[15] The power to terminate proceedings summarily is, however, to be exercised with caution and should not be exercised unless it is clear that there is no real question to be tried.[16] Further, even if satisfied that a proceeding has no real prospect of success, pursuant to s 64 of the Civil Procedure Act 2010, a court may order that a proceeding proceed to trial if it is not in the interests of justice to summarily dismiss the proceeding, or the dispute is of such a nature that only a full hearing on the merits is appropriate.

30 In order to understand how the defendant's application for summary judgment is put, it is necessary to understand some key features of the statutory regime established by Part IV of the Act.

31 Section 90A of the Act provides that an application for a 'family provision order' may be made by an 'eligible person'. An 'eligible person' is defined in s 90 by reference to persons in specific categories which are generally expressed by reference to types of relationship or connection with a deceased. Relevantly, one such category set out in paragraph (k), being the basis upon which the plaintiff contends that she is an 'eligible person', is:

a person who, at the time of the deceased's death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member;

32 Section 91(1) of the Act provides that, on an application for a family provision order, 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'. However, pursuant to s 91(2), the Court must not make a family provision order unless satisfied of the following matters:

(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...

33 Importantly, for the purposes of its summary judgment application, the defendant does not contest that the plaintiff satisfies the requirements set out in subparagraphs (a), (c) and (d) of s 91(2) of the Act.

34 Subsections 91(4)-(5) of the Act relevantly provide:

(4) In determining the amount of provision to be made by a family provision order, if any, the Court must take into account -

...

(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.

35 The defendant submitted that the plaintiff's claim for further provision must fail because she cannot establish any dependence upon the deceased for her proper maintenance and support at the time of death for the purposes of s 91(5)(b). This conclusion is said to follow from three propositions.

36 First, the defendant fixes upon a concession made by the plaintiff in her affidavit that:

Although Aunt Dolly paid many sums of money to me, I was not being maintained by her prior to her death.

37 It was submitted that, by this statement, the plaintiff had conceded that she had no dependence on the deceased. By operation of s 91(5)(b) of the Act, the amount of provision made by a family provision order must be proportionate to a person's degree of dependency upon the deceased for their proper maintenance and support. Therefore, even if the plaintiff could establish an entitlement to further provision from the estate, because the plaintiff's degree of dependence on the deceased was zero, the amount of the provision must also be zero. The plaintiff's claim was accordingly futile.

38 Secondly, the defendant submitted that this conclusion cannot be overcome by asserting that the plaintiff was emotionally dependent on the deceased. It was the defendant's case that the 'dependency' in s 91(5)(b) does not extend to emotional dependence. Dependence requires that the plaintiff be dependent upon the deceased for material aid; dependency in an emotional sense is not enough. The judgments of Lansdowne AsJ in Veniou v Equity Trustees Limited[17] and Englefield JR in Re Meuleman; Quiminakelo v Amidzic,[18] were relied upon to support this proposition.

39 The third proposition advanced by the defendant as to why the plaintiff's claim must fail was that, even if 'dependency' in s 91(5)(b) extended to include emotional dependence, the evidence did not establish any such dependency on the part of the plaintiff upon the deceased. The defendant emphasised the absence from the plaintiff's affidavit of any claim of emotional dependence by her on the deceased. So much was said to be unsurprising given that she had lived in the United States of America since 2012, being a living arrangement inconsistent with a relationship of emotional dependence.

40 Insofar as emotional dependence might be said to be inferred from the plaintiff's evidence, the defendant submitted that the only dependence which might arguably be identified is a dependence of the deceased on the plaintiff. The deceased was an elderly woman living alone in Australia, while the plaintiff was a relatively young woman who made a life for herself in another country. In her evidence, the plaintiff stated that she 'realised how much [the deceased] missed me and ... I was her only family' and that:

... [s]he did want me to come back and live with her and she was always upset that I had gone to Los Angeles because I was her only family. I visited in July and August of 2018 and it was a very emotional time. She was in a hospice and she was ill and she asked me to come back to live with her and I said that I would come back ...

41 Given the concessions made by the defendant for the purposes of the summary judgment application referred to in [33] above, it is unnecessary to address the plaintiff's submissions that she was an 'eligible person' within the meaning of s 91(2)(a) if the Act.

42 The plaintiff's submissions were otherwise directed at establishing that she 'was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support' within the meaning of s 91(2)(b) of the Act. Although the plaintiff had acknowledged that she was not being maintained by the deceased at the date of her death, it was submitted that the evidence indicated that she was nevertheless wholly or partly dependent on the deceased for her proper support. This support was submitted to be apparent from the following matters established by the evidence:

(a) By allowing the plaintiff to leave a large number of her possessions in the deceased's garage.

(b) The retention by the plaintiff of a spare key to the deceased's house at Kerferd Road, with the deceased's carer being the only other person having a key.

(c) The making of promises by the deceased that she would remember the plaintiff in her will. The plaintiff had deposed that:

When my mother was dying from cancer and my sister was dying, [the deceased] said to me on a number of occasions she would leave me all her money or put it into a trust beforehand. She said that she would look after me and it was the right thing for her to do. She helped my parents financially when they were ill and promised them that I would be looked after by from [sic] Sydney to live with my mother

(d) That the deceased had made significant provision for the plaintiff in prior wills.

(i) It was the plaintiff's evidence that, in a will dated 13 November 1999,[19] an amount of $100,000 and 32 Page Street were to be left to the plaintiff's mother, and two other properties were to be sold and to form residue, which was left one third to each of the plaintiff and two charities.

(ii) In a will dated 15 December 1999, $200,000 was left to the plaintiff's father and one of the properties was left to the plaintiff's mother. Two of the other properties were to be sold and to go into residue. One third of that residue was to be held on trust for the plaintiff, with the plaintiff being paid the income from it. The remaining two thirds were to go to charities. The plaintiff was also to receive 32 Page Street and $100,000.

(iii) In a will dated 19 May 2009, the deceased left 32 Page Street to the plaintiff and another property to the plaintiff's mother. The plaintiff was also to receive the income from one third of the residue of the estate, which would be made up of the proceeds of sale from the two other properties.

(iv) In a will dated 26 November 2010, the deceased did not specifically devise any of her properties, but instead divided her residue into three parts, with the plaintiff receiving income from one third of the residue for life.

(v) In a will dated 11 October 2011, the deceased again did not specifically devise any of her real properties, and the plaintiff received the same gift of income from one third of residue for life, in terms similar to the 26 November 2010 Will.

(e) The fact that, in her will, the deceased left 32 Page Street to the plaintiff.

(f) The defendant's application to VCAT for authorisation to seek that a statutory will be made for the deceased and the making of an order permitting that application to be made was submitted to be 'a factor in ... the recognition of an obligation of dependency'.

43 As put by the plaintiff in her written submissions, 'Support includes emotional support, the support given to living in the house and a key to the house, the promise made of provision in the Will and the fact of provision set out in paragraph 8 of the Will'. On that basis, it was submitted that there was evidence to make good the plaintiff's claim that she was a member of the household and, had the deceased not died, was likely to become a member of the household again, and that she was wholly or partly dependent on the deceased for maintenance and support.

44 In oral submissions, the plaintiff also argued that the word 'maintenance' in the phrase 'proper maintenance and support' means the ability to lead a normal life.[20] The plaintiff's ability to store her goods, having a key to the deceased's house and knowing that she could return to Australia and live with the deceased was said to amount to maintenance in this sense.

45 The plaintiff submitted that the High Court had noted that statutory regimes such as Part IV of the Act are remedial in character and should not be construed restrictively.[21] It was submitted that the authorities cited by the Judicial Registrar in the reasons in support of her construction adopted too restrictive an approach. The conclusion from these cases that 'proper maintenance and support' only countenanced a 'financial sum' was erroneous. Instead, the legislation should be read in a beneficial way so that it encompasses the 'support' offered to the plaintiff in this case, being 'the knowledge of knowing she could return to Australia', 'the promise that she would be provided for', and the testamentary provision of a house.

46 The plaintiff also relied on Derham AsJ's comments in Innes-Irons v Forrest, where his Honour said that a determination as to whether an eligible person satisfies the factors in s 91(2)(b) to (d) of the Act 'will usually require a trial, or at least a more extensive consideration of the evidence than on a summary dismissal application'.[22] She also noted Mukhtar AsJ's observation in Jackson v Newns in the context of a proceeding under Part IV of the Act 'that summary disposals in this type of case are rare'.[23]

47 The plaintiff submitted that this case was not appropriate for summary dismissal because 'too many assumptions and value judgments' were 'being made on the affidavit material'. The defendant was asking the Court to make assumptions or draw inferences not available on the factual material, and this made the matter proper for trial. It was submitted that the issue of dependence needed to be examined in more detail than is contained in the affidavit material.

48 In written submissions, the plaintiff sought to draw an analogy between the use of the word 'dependency' in Part IV of the Act on the one hand and in the Transport Accident Act 1986. The plaintiff referred to various authorities including Marsh v Transport Accident Commission,[24] Hannon v Transport Accident Commission[25] and Hammerstein v Transport Accident Commission as examples of where, because of its beneficial nature, the Court had adopted a broader interpretation of a statutory provision which referred to 'dependency', and urged that a similar approach should be adopted here.

49 In supplementary submissions, the plaintiff submitted that this is not the usual case where an application is made by a person seeking further provision under Part IV of the Act. Here, provision had been made for the plaintiff in the will, but that provision had been adeemed. In that unusual circumstance, it was submitted that the plaintiff 'is entitled to say that she becomes an eligible person by reason of the deceased's own recognition of her obligation to the Plaintiff and the Plaintiff's dependence on her'.

50 The appeal raises a number of issues about the proper construction of the words 'dependent' and 'dependence' and the expression, 'proper maintenance and support'. Before considering those matters, it is necessary to first identify the principles of statutory construction. Those principles were recently summarised as follows by the Court of Appeal in Verraty:[26]

[53] The principles to be applied are not in doubt. The High Court has repeatedly stated that the process of statutory construction starts with the actual text of the statute. The text, however, is to be considered in light of the context and purpose of the statute or particular provision.

[54] In Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue, the plurality summarised the principles as follows:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[27]

[55] In CIC Insurance Ltd v Bankstown Football Club Ltd, the High Court said:

Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.[28]

[56] In Certain Lloyd's Underwriters v Cross, French CJ and Hayne J emphasised the need to look at what the statute says:[29]

The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'.

Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative 'intention' is to use a metaphor. Use of that metaphor must not mislead. '[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have' (emphasis added). And as the plurality went on to say in Project Blue Sky:

Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

[57] In Project Blue Sky Inc v Australian Broadcasting Authority, the plurality said that the legal meaning is 'the meaning that the legislature is taken to have intended [the provision] to have'.[30] It may or may not be the same as the literal meaning.[31]

[58] Difficulties may arise if the literal meaning conflicts with the legislative purpose. In such circumstances, a departure from the literal meaning may be justified. The resultant tension was described by Francis Bennion in Statutory Interpretation: A Code as follows:

Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.[32]

[59] In Colonial Range Pty Ltd v CES-R (Vic) Pty Ltd,[33] the Court of Appeal gave examples of conflicts between the literal meaning and the identified legislative purpose which have justified departure from the literal meaning. These include circumstances where:

(a) the literal meaning would conflict with other provisions of the statute;

(b) the literal meaning is inconsistent with the purposes of the statute;

(c) the literal meaning is incapable of practical application; or

(d) adoption of the literal meaning would lead to a result that is absurd, unreasonable or anomalous.[34]

[60] Departure from the literal meaning will only be justified if the alternative construction is 'reasonably open'[35] and 'consistent with the language in fact used by the legislature'.[36] The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[37]

[61] It must also be recalled that s 35(a) of the Interpretation of Legislation Act 1984 provides that 'a construction that would promote the purpose or object underlying the Act ... shall be preferred to a construction that would not promote that purpose or object'.

[62] In the case of two strongly competing interpretations, the High Court has said:

If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.[38]

51 In examining the text of the Act, it is to be noted that the words 'dependent' and 'dependency' are not defined and only the former appears in one other provision of the Act.[39] There is no indication from the terms of ss 91(2)(b), 91(4)(d) and 91(5)(b),[40] considered in the context of the Act as a whole, that they bear anything other than their natural and ordinary meaning. This is consistent with the observations by Williams and Fullagar JJ in Worladge v Doddridge[41] that the jurisdiction conferred on a court to order further provision under testators family maintenance legislation:

... is conferred in very wide terms and no court or judge would be justified in attempting to define it otherwise than in accordance with the ordinary natural meaning of the words of the section.[42]

In Barns v Barns,[43] Gummow and Hayne JJ identified this statement as one of the starting points for consideration of issues of statutory construction in relation to the Inheritance (Family Provision) Act 1972 (SA).[44]

52 In a statement which has been affirmed by the Court of Appeal of New South Wales on a number of occasions[45] and with which I respectfully agree, in Ball v Newey, Samuels JA observed that '"[d]ependent", in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'.[46] In applying this meaning of 'dependent' in the context of the Act, ss 91(2)(b) and 91(4)(d) make explicit the particular need which an eligible person depends upon a deceased to meet or satisfy: the eligible person's 'proper maintenance and support'.

53 In Pontifical Society for Propagation of Faith v Scales Dixon CJ stated in the context of testator family maintenance legislation that each word in the expression 'adequate provision for the proper maintenance and support' 'must be given its value'.[47] Although they 'cannot be pressed beyond their fair meaning', the words 'proper maintenance and support' 'must be treated as elastic'.[48]

54 In Acworth v Acworth, the Court of Appeal of England and Wales observed that 'maintenance' is a 'very wide word' and included 'much more than food, lodging, clothes, travelling, and so on'.[49] Maintenance is not merely that which is required for subsistence,[50] but the provision of the 'necessaries and of the conveniences of life' which 'provide for existence and comfort in ordinary circumstances'.[51] Maintenance may be provided either by the payment of money, or in kind.[52]

55 In Vigolo v Bostin,[53] Callinan and Heydon JJ considered s 7 of the Inheritance (Family and Dependants) Act 1972 (WA) which gave power to make an order for further provision 'by way of maintenance, support, education or advancement'. Their Honours stated that:[54]

... 'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. ...

56 In Anderson v Teboneras, Ormiston J rejected a submission that the expression 'maintenance, education and advancement in life' appearing in the then New South Wales testator family maintenance legislation had a wider scope than the words 'maintenance and support' in the Act. [55] His Honour stated:[56]

... I cannot accept this restriction on the meaning of the words 'maintenance and support'. Whether one looks to the earlier New Zealand authorities approved in Bosch's Case and cited in the later High Court decisions or to the decisions of the High Court themselves, there has been a consistent interpretation, regardless of the jurisdiction from which the appeal has come. The word 'support' has been taken to comprehend any kind of provision, other than maintenance, which a testator is under a moral duty to make for a member of the prescribed class of applicants. The emphasis on the word 'advancement' in McCosker v McCosker, at p575 and Blore v Lang, at p128 is readily explicable in the context of the known and relatively restricted meaning of the preceding words 'maintenance [and] education' in the New South Wales Act. The natural meaning of the word 'support' is at least as wide as 'advancement in life', but, even if it were not, the combined expression 'maintenance and support' has been given so consistently wide an interpretation by the High Court that apparent distinctions between the criteria for the exercise of the court's jurisdiction in the various States should be seen as insignificant. An exact interpretation may not have been given to each of the words used in the several Acts, but this is indeed an area of the law in which a purposive interpretation of that legislation has been accepted for many years by the High Court. It follows that, in so far as the plaintiff may have made out some claim that the testator overlooked his moral obligation to make provision for the plaintiff's advancement in life, such a claim can properly be comprehended by the requirement in the Victorian Act for adequate provision for his proper maintenance and support.

57 In Blore v Lang Dixon CJ stated that the words 'advancement in life' have a 'wide meaning and application' and are not confined to a person's advancement in their younger years.[57]

58 Notwithstanding the breadth which the authorities indicate is to be attributed to the words 'maintenance' and 'support', like Englefield JR in Re Meuleman,[58] I am unaware of any authority for the proposition that 'proper maintenance and support' might encompass the provision of non-financial or non-material assistance. Counsel for the plaintiff did not refer me to any such authority in support of his assertion that 'support' explicitly includes emotional support and there is nothing in the text of the Act which indicates that this was Parliament's intention. To the contrary, a review of the relevant legislative history and associated extrinsic material indicates that this was not Parliament's intention.

59 Sections 90 and 91 of the Act were substantially augmented by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) (the 2014 amendments). The Explanatory Memorandum to the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014 (the Bill) described its aim as being '... to ensure that Victorian succession laws operate justly, fairly and in accordance with community expectations in relation to the way that property is dealt with after a person dies'.

60 The background and purpose of the 2014 amendments were referred to in some detail by the Court of Appeal in Scott-Mackenzie v Bail.[59] The Court identified that the amendments replaced the pre-existing 'responsibility test' with a 'category based eligible applicant approach'. The former permitted any person to make a claim for further provision if a court were persuaded that the deceased person owed a claimant a responsibility, interpreted by the cases as a moral duty or obligation, to make provision for his or her maintenance and support.[60] The Court explained that:

The 2014 amendments had their genesis in a review of Victorian succession laws by the Victorian Law Reform Commission ('the VLRC') at the request, in 2012, of the then Attorney-General. In respect of family provision, the VLRC was asked to review and report whether the family provision legislation, that is, the 1998 amendments, was operating justly and effectively, having regard to its objective of providing for the proper maintenance and support of persons for whom a deceased had a responsibility to make provision.

After extensive consultation, the Victorian Law Reform Commission Report entitled 'Succession Laws' ('the VLRC Report') was prepared and tabled in Parliament on 15 October 2013. The VLRC Report recommended change in relation to the threshold determination of who was an eligible person by replacing its 'responsibility' test for eligibility to make a family provision claim with a test based on the New South Wales test for eligibility, but extended to include stepchildren. It was suggested that this amendment would increase certainty and decrease the number of opportunistic claims while still providing sufficient flexibility for eligible applicants.[61]

61 The Court identified that s 90 was part of a suite of amendments to reintroduce category based eligibility for applications under Part IV of the Act.[62] Importantly, the Court stated that the 2014 amendments were:

...intended to limit the categories of persons eligible to make a claim under pt IV of the Act in an effort to restore certainty and clarity to the law.[63]

Given the universal and necessarily subjective nature of emotional life in all its complexity, this intention will not be furthered by construing the word 'dependence' as extending to include emotional dependence and 'support' as including emotional support.

62 Although the Explanatory Memorandum to the Bill does not contain any explanation about the purpose or intended operation of s 90(k) or the provisions of s 91 which might be of relevance to this proceeding, the substance of those provisions were adverted to in the speeches which accompanied the Bill in its passage through Parliament.

63 In his Second Reading Speech on 18 September 2014, the then Attorney General, Robert 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' by amending 'the current family provision scheme to limit who can make a claim on a deceased estate and the grounds on which a claim can be made'.[64] In relation to certain specified groups of claimants, including those referred to in s 90(k), he stated that:

...the court will need to be satisfied that they were financially wholly or partly dependent on the deceased... For such applicants, in determining the amount of provision, if any, to be ordered, the court must take into account, amongst other things, the degree to which the applicant was dependent on the deceased.[65]

64 Parliamentary debate over the Bill resumed on 15 October 2014. By that time, amendments to the Bill had been made in the Legislative Council as a result of concerns raised by the Opposition and the Bill was passed in amended form. Those amendments principally concerned the removal of a requirement contained in the Bill that, in order to be an 'eligible person' able to bring a claim for further provision, adult children and stepchildren of the deceased be dependent on the deceased as at the date of death. It was in that context that the then Shadow Attorney General, Martin Pakula referred, at a number of points in his speech, to such persons being 'financially dependent'.[66]

65 The above statements in the Parliamentary debates which led to the making of the 2014 amendments further support the conclusion that the words 'dependent' and 'dependence' in ss 91(2)(b), 91(4)(d) and 91(5)(b) were not intended to extend to include emotional dependence.

66 In considering this issue of construction, I have found the authorities dealing with s 57(1)(e) of the Succession Act 2006 (NSW)[67] to be of limited assistance because of significant differences between the relevant provisions of that act and those presently under consideration. As Englefield JR correctly identified in Re Meuleman, unlike in Victoria under the Act, in New South Wales dependence is a requirement at the threshold and not the quantum stage; dependency is not required at the time of death; and there is no nexus between degree of dependency and 'proper maintenance and support'. [68]

67 In Veniou, which Englefield JR applied in the primary judgment, Lansdowne AsJ concluded that the proper construction of 'dependent' as used in the Act:[69]

... 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. ... 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.

68 For the reasons set out above, I consider that, with respect to her Honour, this construction accords with the meaning of the words used in ss 91(2)(b), 91(4)(d) and 91(5)(b) of the Act understood by reference to their context and purpose.

69 The gravamen of the defendant's application for summary judgement is that the plaintiff's claim for further provision is futile: because she had no dependence on the deceased at the time of her death, her degree of dependence on the deceased was zero with the consequence that, by operation of provided by s 91(5)(b) of the Act, the amount of any family provision must also be zero. Although this analytical framework mandated by s 91(5)(b) of the Act may be accepted, taking the plaintiff's evidentiary case at its highest, I am not satisfied that the plaintiff had no dependence on the deceased at the time of her death.

70 Once it is acknowledged that, as explained by Ormiston J in Anderson v Teboneras and Another, 'support' in the phrase 'maintenance and support' is at least as wide as 'advancement in life' and that the latter expression has a wide meaning and application connoting provision beyond the necessities of life, when the plaintiff's evidentiary case in relation to the storage of her possessions at the deceased's home is taken at its highest, I do not accept that it can be said that she had no dependence at all on the deceased at the time of her death.

71 The plaintiff's evidence on this issue[70] is that she left a large number of her possessions in the garage at the deceased's house when she left Melbourne to live in Los Angeles in 2012 in order to advance her career in the film and television industry. The plaintiff kept in contact with the deceased on at least a weekly basis while she was in Los Angeles. She intended to eventually return to the deceased's house, where she had lived for about three years before departing for Los Angeles, at which time she would pick up her possessions.

72 It is a matter for trial but, on the basis of this evidence and the evidence about the close relationship which existed between the plaintiff and the deceased over many years before the plaintiff left for Los Angeles, it is open to infer that, in leaving a large number of her possessions at the deceased's house, the plaintiff did so with the deceased's knowledge and agreement. Upon the basis of such a finding, it could properly be submitted that, by permitting the plaintiff to store her many possessions at her home while she travelled overseas to further her professional career, the deceased provided support to the plaintiff of a material kind, the effect of which was to facilitate or enable the plaintiff's advancement in life and that, in this way, she was partly dependent on the deceased for her proper maintenance and support at the time of the deceased's death. It is unnecessary and inappropriate to seek to quantify or estimate the extent of any such support; it is sufficient to simply acknowledge that it would be open to characterise it as support of a non-trivial material kind.

73 This conclusion is sufficient to dispose of the appeal in the plaintiff's favour. It is, however, appropriate to make some brief observations about the remaining arguments advanced by the plaintiff in support of the submission that she was dependent on the deceased for her support at the time of the deceased's death.[71]

74 Although the fact that the plaintiff retained a spare key to the deceased's home suggests that they had a close and trusting relationship, of itself it says nothing about whether the plaintiff had any dependence on the deceased for her proper maintenance and support.

75 The plaintiff also argued that her capacity to store her goods, having a key to the deceased's house and knowing that she could return to Australia amounted to the provision of 'maintenance' by the deceased because it meant 'the ability to lead a normal life'. Although the concept of 'maintenance' is, as I have explained, a broad one not limited to provision for subsistence,[72] I am not persuaded that the authorities establish that it means the capacity to 'lead a normal life'.[73] Given my conclusion above, it is unnecessary to consider that issue further.

76 The plaintiff also relied on the making of promises by the deceased that she would remember the plaintiff in her will. Such representations about the future do not involve the provision by the deceased of actual material assistance to the plaintiff before the deceased's death. The reliance on the fact that, under the will, the deceased left 32 Page Street to the plaintiff and had made provision for her in prior wills must fail for the same reason. The submissions based on the fact that the defendant had applied to VCAT for authorisation for the making of a statutory will and the 'unusual circumstance' of the gift of 32 Page Street having apparently been adeemed are similarly misdirected.

77 The plaintiff's submissions insofar as they were based on the premise that the words 'dependent' and 'dependence' in ss 91(2)(b), 91(4)(d) and 91(5)(b) of the Act include emotional dependence must fail in light of the conclusions I have reached on the construction of those provisions. However, even if I am wrong in that construction, for the reasons advanced by the defendant,[74] the evidence does not establish any such dependency on the part of the plaintiff upon the deceased.

78 The appeal must, however, succeed in light of my conclusions referred to in [70]-[72] above. Within seven days the parties are to file a minute of proposed orders giving effect to these reasons for judgment.

[1] Also known as Dolly Lindrum, Irene Mary Dunn and Irene May Lindrum.

[2] [2020] VSC 611, (the primary judgment).

[3] See at [5], [61] of the primary judgment. Section 91(4)(d) of the Act is set out in [34] below.

[4] Section 91(5)(b) of the Act is set out in [34] below.

[5] Pursuant to r 84.06, a notice of appeal is to be filed within 14 days after the determination was given or made by the judicial registrar. In this proceeding, the notice of appeal was lodged by the plaintiff outside this time period. At the hearing of the appeal, I made an order extending time for the filing of the appeal pursuant to r 84.09.

[7] [2000] HCA 40; (2000) 203 CLR 172.

[8] Ibid, 180 [23] (Gaudron, McHugh, Gummow and Hayne JJ).

[9] [2020] VSC 86.

[11] Although the subject of objection on the grounds of relevance, I have determined to receive the affidavit as the matters deposed to in it concern the factual matrix in which the proceeding is brought and which are referred to in the plaintiff's application without objection.

[12] 61 Page Street, Albert Park, 158 Kerferd Road, Albert Park and 160 Kerferd Road, Albert Park.

[13] Being the sale price of the property less any applicable taxes.

[14] Plaintiff's submissions regarding the summary dismissal application at first instance, [21].

[15] See Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, 39 [29] (Warren CJ and Nettle JA) ('Lysaght'); Utility Services Corporation Ltd v SPI Electricity Pty Ltd [2012] VSCA 158; (2012) 35 VR 628.

[16] Lysaght (n 15), 40 [35] (Warren CJ and Nettle JA).

[17] [2018] VSC 832 ('Veniou').

[18] [2020] VSC 376 ('Re Meuleman').

[21] Barns v Barns (2003) 214 CLR 169, 187-8 [44] (Gummow and Hayne JJ), 210 [124] (Kirby J).

[22] [2016] VSC 782, [38].

[23] [2011] VSC 32, [11].

[24] (2020) 92 MVR 201 (Niall JA).

[25] [2002] VCAT 118 (Megay SM).

[26] Verraty Pty Ltd v Richmond Football Club Ltd [2020] VSCA 267, [53]-[62].

[27] [2009] HCA 41; (2009) 239 CLR 27, 46-6 [47]; [2009] HCA 41 (Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted). See also Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39]; [2012] HCA 55 (French CJ, Hayne, Crennan, Bell and Gageler JJ); Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523, 539-40 [47]; [2013] HCA 16 (French CJ, Crennan, Kiefel, Gageler and Keane JJ).

[28] (1997) 187 CLR 384, 408; [1997] HCA 2 (Brennan CJ, Dawson, Toohey and Gummow JJ) (citations omitted) ('CIC Insurance').

[29] [2012] HCA 56; (2012) 248 CLR 378, 389-90 [24]-[25]; [2012] HCA 56 ('Certain Lloyd's Underwriters').

[30] (1998) 194 CLR 355, 384 [78]; [1998] HCA 28 (McHugh, Gummow, Kirby and Hayne JJ) ('Project Blue Sky').

[32] Francis Bennion, Statutory Interpretation: A Code (Butterworths, 3rd ed, 1997) 344, referred to with approval in Project Blue Sky (1998) 194 CLR 355, 384 [78]; [1998] HCA 28 (McHugh, Gummow, Kirby and Hayne JJ).

[33] [2016] VSCA 328.

[34] Ibid [53] (Warren CJ, Whelan JA and Riordan AJA) (citations omitted).

[35] CIC Insurance (1997) 187 CLR 384, 408; [1997] HCA 2 (Brennan CJ, Dawson, Toohey and Gummow JJ).

[36] Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531, 549 [39]; [2014] HCA 9 (French CJ, Crennan and Bell JJ).

[37] Certain Lloyd's Underwriters [2012] HCA 56; (2012) 248 CLR 378, 390 [26]; [2012] HCA 56 (French CJ and Hayne J).

[38] Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297, 321; [1981] HCA 26 (Mason and Wilson JJ) ('Cooper Brookes').

[39] Section 99A, within Part IV of the Act, provides for the protection of a personal representative against liability when they have properly made a distribution for 'the maintenance support or education of the partner or any child of the deceased totally or partially dependent on the deceased immediately before the death of the deceased ...'. The section has not been the subject of any relevant judicial consideration.

[40] Set out in [32] and [34] above.

[41] [1957] HCA 45; (1957) 97 CLR 1.

[42] [1957] HCA 45; (1957) 97 CLR 1, 9.

[45] See Petrohilos v Hunter 25 NSWLR 343, 346; Spata v Tumino [2018] NSWCA 17; 95 NSWLR 706, [68] 720.

[46] (1988) 13 NSWLR 489, 491 [A] (Samuels JA with whom Hope and Mahoney JA agreed).

[47] Pontifical Society for Propagation of Faith v Scales 107 CLR 19 (Dixon CJ).

[48] 107 CLR 19.

[49] [1943] P 21, 22.

[50] Re Borthwick (Deceased); Borthwick v Beauvais [1949] Ch. 395, 401; Baxter v Baxter [2014] VSC 377, [107].

[51] Kallin v Kallin [1944] SAStRp 31; [1944] SASR 73, 75.

[53] [2005] HCA 11; (2005) 221 CLR 191.

[55] Anderson v Teboneras and Another [1990] VicRp 47; [1990] VR 527 537.

[57] Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, at 128, citing McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, 575.

[59] [2017] VSCA 108.

[64] Victoria, Parliamentary Debates, Assembly, 18 September 2014, 3343 (Robert Clark, Attorney-General).

[66] Victoria, Parliamentary Debates, Assembly, 15 October 2014, 3651, 3653.

(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'.

[70] See [24]- [25] above.

[71] See at [42] above.

[73] In support of her contention, the plaintiff relied on the judgment of Englefield JR in Re Meuleman who stated at [72] - "However, 'maintenance' has been defined in case law as signifying that which is necessary to enable a person to live a normal life and, in the case of a child, be bought [sic] up properly", citing A Dickey, Family Provision After Death (The Law Book Company, 1992), 101. The authorities referred to in the learned author's text do not, however, formulate or refer to 'maintenance' as 'the ability to lead a normal life'.

[74] See [39]-[40] above.