Taylor v Brinin & Anor [2024] QDC 84

Baker v Baker (No 1) [2019] QDC 92

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

Charlesworth v Griffiths [2018] QDC 115

Daveniza v Daveniza [2014] QSC 37

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Geneva Laboratories Limited v Nguyen [2014] FCA 1270

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857

Grimsley v Paul [2021] QSC 78

Higgins v Higgins [2005] QSC 210

Jones v Sutton (No. 2) [2005] NSWCA 203

Laursen & Ors v Laursen [2009] QSC 30

McDermott v McDermott [2023] QSC 163

Niebour-Pott v Pott [2020] QSC 7

Sellars v Maeyke [2005] QSC 368

Succession Act 1981 (Qld) ss. 41, 44

Uniform Civil Procedure Rules 1999 (Qld) r. 5

I. Klevansky for the respondents (applicants on this application)

M. Crofton for the applicant (respondent on this application)

Pennisi Zia for the respondents (applicants on this application)

Wilson Lawyers for the applicant (respondent on this application)

• [1] This is an application by the executors of the estate of Ida Joyce Taylor (the deceased) for the summary dismissal of an originating application by a daughter of the deceased (Ms Taylor), seeking further provision from her mother's estate pursuant to s. 41(1) Succession Act 1981 (Qld) (the Act). For the reasons I now give, I dismiss Ms Taylor's originating application.

• [2] Ida Joyce Taylor died in or about 24 to 27 November 2022, leaving a will dated 6 May 2022 (the Will). The deceased was survived by her two daughters, Ms Taylor the applicant and Marianne Lucas (Ms Lucas). The Will appoints the respondents as executors. It also relevantly provides by clause 3 that the estate is to be held on trust in equal shares for the two sisters. On 27 February 2023, probate with the Will was granted to the executors. On 13 July 2023 (over 7 months after death), the executors paid interim distributions to each sister of $80,000.00. On 21 August 2023 (over 8 months after death), the executors paid a further interim distribution to each sister of $324,159.03 each.
• [3] On 25 August 2023, the applicant filed an originating application seeking further provision from the estate supported by her first affidavit.[1] The application was either just at, or just after, the expiry of the 9-month period for filing an originating application for further provision: s. 41(8) of the Act. Given this is an application for summary dismissal, it will be assumed favourably to Ms Taylor that the originating was filed in time. However, Ms Taylor did not give the executors any notice of her intention to file an application for further provision prior to this time.[2] The interim distributions were therefore made by the executors without notice of the intention to bring a claim. Directions under Practice Direction 8 of 2001 were made by consent on 11 September 2023.
• [4] The directions obliged the executors to file material by 20 October 2023. Only one joint affidavit was filed, and that was about a month late. The executors' initial affidavit had many shortcomings. It is replete with broad and inadmissible statements seemingly based on hearsay or speculation and included irrelevant opinions of the executors of the applicant's character. It omitted fundamentally important evidence of the assets and liabilities at the date of death. It also contained irrelevant observations indicative of a lack of understanding of the nature of the jurisdiction, such as "we believe that the provisions of the deceased will provide for a fair and equitable distribution to her two children...we believe that this application is without merit".[3]
• [5] The jurisdiction is not concerned with fair and equitable distribution, but rather with making adequate provision for proper support for eligible applicants. As Mr Crofton rightly submitted, in the family provision jurisdiction, "equality is equity" is not the ruling principle.[4]
• [6] Inadequate and misconceived evidence does not advance the prompt and efficient resolution of family provision applications, rather the contrary.[5] For example, it led to the inevitable responses from Ms Taylor in her second affidavit to address the more derogatory (albeit inadmissible and irrelevant) comments in the executors' affidavit.[6] As it happens, however, these shortcomings play little part in the resolution of the application for summary dismissal.
• [7] On 11 March 2024, Ms Taylor brought an application to compel a mediation. The consent directions had required a mediation by early December 2023. That was resolved by consent, for a mediation to occur by 11 April 2024. That order was not complied with by agreement of the parties, seemingly because this application was listed for 12 April 2024. No order varying the consent order was made.

• [8] I set out my view as to summary dismissal of an application for a family provision in Charlesworth v Griffiths [2018] QDC 115. I began my analysis with Higgins v Higgins [2005] QSC 110, which relevantly provides:

[9] Mr D Mullins SC for Douglas submitted that Malcolm's claim is so weak that it ought to be struck out before the assets of the estate are further eroded by embarking on mediation and, if unsuccessful, a hearing...

[15] ...the court may at any stage of a proceeding (which includes a process started by an application, r 8) make any order, including a judgment, that the nature of the case requires, r 658. Furthermore, there is nothing in the UCPR to displace the inherent jurisdiction of the court which includes the power to dispose of the proceeding summarily, General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125.

[16] The often quoted statement of Barwick CJ in General Steel at 129 referring with approval to observations by Dixon J in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 continues to provide guidance as to the proper approach to an application to dismiss proceedings summarily. After extracting some expressions from the authorities his Honour said at 129

"As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court ... the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners where he says: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. ... But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.' Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."

• [9] I then stated developed the applicable principles where summary dismissal is sought in family provision applications as follows:

[10] It is plain from this case, that the power exercised when dismissing applications under s. 41(1) of the Act brought by originating application is the inherent jurisdiction of a court to prevent abuse of its processes by the prosecution of untenable claims. This Court has equivalent jurisdiction, at the least arising under s. 69 District Court Act 1967 (Qld).

[11] The articulation of the threshold for determination that a proceeding is so untenable as to comprise an abuse of process varies from case to case. A well-known example in this area of the law is Applegarth J's decision in Atthow v McElhone [2010] QSC 177. In that case, his Honour reviewed the evidence on an application for summary dismissal and held:

[28] Even assuming relevant factual disputes would be resolved in Kay's favour at any trial it is extremely hard to see any basis to conclude that the deceased at the time of her death in fact had an obligation to make provision for the proper maintenance and support of Kay. Kay's application amounts to little more than a contention that an obligation was owed to her because she was, after all, the deceased's daughter and because her siblings had always been favoured by their mother.

[29] Having reserved the matter, and reflected on Kay's prospects at any hearing, I am extremely reluctant to find that she has a prima facie case in the sense discussed in the authorities. Her claim for provision to be made in her favour out of her mother's estate seems practically hopeless. However, exercising the extreme caution that is appropriate to applications for summary judgment, I decline to exercise my discretion to summarily terminate the proceeding.

[12] The respondent contends that the effect of his Honour's judgment is that even if a claim for provision is practically hopeless, it cannot be summarily dismissed on a General Steel basis. I disagree. His Honour's particular words reflected the manner in which he articulated the conclusion that the particular case was not one appropriate for summary dismissal, as is obvious from the next sentence in his Honour's reasons. That comment does not set down a binding legal test for summary dismissal. The principle to be applied is that articulated in General Steel.

[13] It scarcely needs to be remarked that this power falls to be exercised in many different contexts, its application in the context of allegedly untenable family provision applications is just one such context.

[14] It might be contended that Rules 5(1) and 5(2) UCPR might be thought to provide a context in which a slightly less demanding approach should be adopted to the application of the General Steel test. In my view, that contention could not be accepted by a trial judge of this Court. Rule 5 does not, in terms, apply to the implied power exercised in a case of this kind. And in any event, the strictness of the requirement that a case be shown to be an abuse of the Court's process is one which arises from the nature of the concept of abuse of process itself and the articulation of what is required to establish that conclusion in, inter alia, General Steel. It is a serious matter to deprive a party of access to a trial of a claim on its merits on the basis that the party is abusing the process of the Court by pursuing the claim. This discipline applies just as much to applications under s. 41(1) as to any other proceeding.

[15] In some previous cases, the focus for application of the General Steel test has been on whether a party makes out a prima facie case in respect of the first stage.[7] That focus is perhaps understandable given the procedural history identified by White J in Higgins above. However, those cases do not purport to exhaustively state the circumstances in which an application under s. 44(1) might be dismissed on a General Steel basis, and to do so might be thought to inappropriately confine the scope of that power.

[16] In my view, the power to dismiss as an abuse of process is not confined to an assessment of whether there is prima facie case advanced by the application on the first stage of the Singer v Berghouse test. The power recognised in General Steel depends on all the circumstances of the particular case. Accordingly in my view, if it were demonstrated that the proceedings were "useless and futile" because by the time a trial was completed, the estate would be so diminished as to make it plain that the applicant's claim was in all the circumstances doomed to fail, it would be open to the Court to dismiss the proceedings on a summary basis.

[17] While I consider it would be open to the Court to dismiss the proceedings if the applicant's case on stage one was not untenable but the applicant's case on stage two was untenable, it would be a heavy burden to establish the latter matter on a summary basis. There are any number of possibilities as to how matters might play out both before and at the trial. Costs might be less than anticipated (though in my experience that rarely happens). The value of the estate might be increased during the litigation phase and so on. It might be that in most cases, the position as at completion of the trial is so speculative as to make any certain conclusion that a claim is untenable impossible practically to establish.

[18] The possibility of settlement, however, does not seem to me to be one of the factors which will ordinarily be relevant to this assessment. While it is possible that settlement might occur prior to trial, it is not uncommon that personal representatives feel compelled to settle proceedings precisely because of the costs implications of testing the applicant's case at trial. This is not an issue where an estate is large. In that case, the pressure of costs is a normal consideration which should be taken into account by all parties.

[19] However, where that pressure arises from the reality that unless a matter is settled, the beneficiaries will be deprived of all or substantially all of their benefit in a very small estate, it becomes a point of greater concern. Where it can be shown on a summary basis that the circumstances of the case are such that, absent a settlement, the applicant's case is untenable, I do not see why the possibility of settlement should exclude the Court's power to dismiss a proceeding as an abuse of process. Demonstrating that on a summary basis will however often be difficult.

[20] The practical consequence is that the burden on a personal representative to establish the dismissal of an application of doubtful merit in a small estate remains a heavy one.

• [10] I did not understand either counsel to cavil with the law as stated there. Both counsel agreed that in considering whether the proceedings were so untenable as to comprise an abuse of process, the Court should accept the applicant's evidence at its highest. In broad terms, this is undoubtedly correct.[8] That does not mean, however, that the Court must ignore patent errors or omissions from the evidence, particularly where the evidence is effectively finalised. Each case depends on its own circumstances. One relevant circumstance here is that the trial will be conducted on affidavit material, and the parties have filed voluminous affidavits on the issues in the proceedings. No suggestion was made that further evidence of material of relevance remained to be led.
• [11] Another matter to keep in mind is that ultimately, on this application, the Court is exercising its inherent jurisdiction to prevent abuse of its own processes. The primary basis for reaching such a conclusion in a family provision application will usually be that application is so untenable as to be an abuse of process. However the scope of abuse of process goes beyond that circumstance. The categories of conduct which can amount to an abuse of process are not closed. However, abuses of process usually fall into one of three categories: the invocation of the court's process for an illegitimate purpose, the circumstance where use of the court's procedures is unjustifiably oppressive to one of the parties, or use of the court's procedures would bring the administration of justice into disrepute.[9]
• [12] Consistent with my analysis in Charlesworth, it is necessary to consider both stages of the two-stage approach to determination of an application for further provision, and to do so taking the most favourable view of the evidence. It is convenient to summarise the broad principles which apply to that approach.

• [13] In Charlesworth, I observed as follows:

The correct approach to the determination of an application under s. 41(1) is well established. It is necessary to apply the two-stage approach described in Singer v Berghouse (No 2) (1994) 181 CLR 201 at 208-210 where the majority held:

The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance... The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant.

The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder ((9) [1951] HCA 44; (1951) 82 CLR 645), where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.

This is the correct approach whether an estate is large or small. However, the size of an estate is an important factor in the determination at both stages. In the context of small estates, not only is the range of needs which can properly be taken into account reduced, but the question of costs can loom large in the determination of the second stage.

In that regard, the first stage is considered at the date of death, while the second stage is determined at the time of trial. In that latter circumstance, costs may have so diminished a small estate as to become a major factor, sometimes the determining factor, in whether any provision can properly be made in all the circumstances.

That reality can properly inform in my view the approach to summary dismissal of proceedings in small estates. The correct approach to an application for summary dismissal of a family provision claim has been articulated as follows.

• [14] A more detailed explanation of the general principles appears in Justice Martin's helpful summary in Daveniza v Daveniza [2014] QSC 37:

[16] From those, and other, decisions the following may be drawn:

(a) The court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.

(b) When considering the proper level of maintenance, the following, at least, should be taken into account:

(iii) the totality of the relationship between the applicant and the deceased,

(iv) the relationship between the deceased and other persons who have legitimate claims upon his or her bounty,

(v) present and future needs including the need to guard against unforeseen contingencies.

(c) The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the "station in life" of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably have expected to live in the future.

(d) "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.

(e) "Support", similarly, may imply provision that exceeds a person's bare needs. 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 that for the mere necessities of life. It is not difficult to conceive of a case in which it might appear that sufficient provision for support and maintenance had been made, but that in the circumstances, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education. This might be the case where, for example, a promise had been made, or where a claimant reasonably held an expectation that such provision would be made.

(f) The totality of the relevant relationship would include:

(i) any sacrifices made or services given by the claimant to or for the benefit of the deceased;

(ii) any contributions by the claimant to building up the deceased's estate; and

(iii) the conduct of the claimant towards the deceased and of the deceased towards the claimant.

(g) Any such sacrifices, services or contributions (whether described as giving rise to a moral duty/moral claim or not) are a relevant consideration (as part of the totality of the relationship between the claimant and the deceased), but are neither a necessary nor a sufficient condition for the making of an order under the Act.

(h) A claimant may fail to establish that the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc, even though no provision was made for him or her in the will.

(i) The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other.

(j) The adequacy of the disposition is assessed as at the time of the testator's death. Any order that might be made is considered in the light of the applicant's circumstances at the time of the trial.

[17] Care must be taken not to extend the idea of a "moral claim" beyond the language of the statute. Section 41 does not give a court carte blanche to remake a will in a way that may appear to be more just. It is a power that should be exercised with the restraint dictated by the terms of the section. The predicament in which a court finds itself has been commented upon many times. In Pontifical Society for the Propagation of the Faith v Scales Dixon CJ observed that it was never intended by the legislation that "freedom of testamentary disposition should be so encroached upon that a testator's decision expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court". Consideration of these applications must always proceed with the understanding that the capacity of a court to make an assessment is necessarily limited, as the deceased cannot explain his or her reasons for the disposition of the estate or respond to the claims of an applicant.

[18] While the terms "moral duty" and "moral claim" have been used as shorthand expressions in the consideration of applications for provision they must be used with care. As Gleeson CJ observed in Vigolo:

"The descriptions of references to moral duty or moral obligations as a gloss upon the text was not new. In 1956, in Coates v National Trustees Executors and Agency Co Ltd, Fullagar J said: 'The notion of "moral duty" is found not in the statute but in a gloss upon the statute. It may be a helpful gloss in many cases, but, when a critical question of meaning arises, the question must be answered by reference to the text and not by reference to the gloss.'" (citation omitted)

• [15] In determining both the matters, the Court approaches the statutory tests from the perspective of the wise and just testator, rather than the fond or foolish testator.[10] Care must be taken, however, to apply this approach with modesty, and bearing in mind the full history of relevant relationships, and that there is a range of responses to given facts which could be considered wise and just. This applies particularly to the first stage of the process where a Will is involved, as in that case the Court must sit in judgment on the provisions made by the deceased.
• [16] There was also another comprehensive analysis of the relevant principles more recently by Justice Brown (as her Honour was then) in McDermott v McDermott [2023] QSC 163 at [34] to [45]. I will not lengthen these reasons by citing that whole passage, though I have read it carefully.

Factual basis for assessing jurisdictional issue

• [17] The executors' affidavit did not set out the assets and liabilities at the date of death. However, a letter from the executors' solicitor sent prior to commencement of the proceedings was included in the material filed by the applicant.[11] That letter states the position as at 9 August 2023, some nine months after the date of death. However, it reveals the position prior to the sale of the two real properties and, doing the best I can, it appears to comprise a reasonable basis for inferring the assets and liabilities at the date of death. The applicant interprets that statement as showing that the net assets of the estate were worth $1.355 million (excluding the value of personal effects and chattels). It did not appear to disclose any liabilities, and I infer the liabilities for the funeral and so on had been discharged by that time.
• [18] The Ms Taylor seemed to accept that figure as the net assets at date of death,[12] though in another footnote, appears to suggest that the net assets at date of death were $1,258,149. This second figure was calculated by adding the net distributions of some $808,000 to the remaining funds of some $444,000, with the difference of some $100,000 allocated to costs of administration over the whole period between death and hearing of the application. However, those costs almost certainly include the costs of this litigation to date to the executors, which are not relevant to the assessment of the estate at the date of death. As of November 2023, the costs and expenses in total were $31,248.87, and they will have gone up since then. I act on the basis that they are being paid monthly, as the trust account statement reflects.
• [19] At the date of death, one should not calculate the estate based on a likely contingent liability for costs of a family provision application. A generous analysis of the other likely costs and expenses of the administration which needed to be factored in as a contingent liability at the date of death is $55,000, not the $100,000 assumed by the applicant.
• [20] On that basis, the net estate at the date of death was at a minimum $1.3m, which means the Will made provision for Ms Taylor by providing a half share of the residuary estate worth $650,000.

• [21] Ms Taylor is 53 years of age, single, was an education officer but since 2013 has been in receipt of government benefits. She suffers from complex PTSD, major depression, anxiety, dissociative disorder, and situational agoraphobia. She swears that her mental health issues "prevented me from retaining any form of employment". Ms Taylor reports that stress results in a dissociative state, during which time she cannot function normally; she becomes manic or incapacitated. She has difficulty leaving her house. She has no superannuation and cannot afford professional mental health care. These factors are constant was between the date of death and the date of a likely trial.
• [22] As at the date of death, she swore that she owned a second-hand car (worth approximately $6,000 and a home which she estimates to be worth $600,000 which, at the time of her first affidavit, had a mortgage of $167,956.38. She says the home requires substantial repairs and maintenance. She had no savings at the time of Ida's death.
• [23] There is no specific income and expenses analysis at the date of death, but it seems safe to assume that it was no worse than the position she swore to in her second affidavit on 21 December 2023, where she deposed to a monthly shortfall, between expenses and income of some $2260 per month.
• [24] Ms Taylor is concerned that she has insufficient resources, notwithstanding the provision made by Ida in her Will, to provide for an adequate contingency fund if her need for medical treatment increases, for any capital expenses required of her home, and to provide (with her pension) sufficient funds by way of income without her facing hardship.
• [25] Subject to the submissions in paragraph [39] (which is misconceived), [56] and [57] below, she does not give any further evidence nor make any submission as to what additional sum would be required, on top of the $650,000 she was entitled to under the Will at the date of death, to ensure adequate provision.

• [26] Her mother provided financial support to Ms Taylor during her life, including to start her first beauty business. From about 2013, when Ms Taylor stopped work, her mother supported Ms Taylor by providing regular payments "to help with the cost of living".
• [27] Ms Taylor says "over the last few years" she received from her mother "regular payment of $1000 a fortnight" - although the amounts varied, sometimes in the amounts of $1,500 or $2,000. Ida also provided other more significant payments, totalling $55,000, to Ms Taylor between 10 February and 5 July 2022.
• [28] Ms Taylor says that her relationship with her mother was close throughout her life, and towards the end of her mother's life they would speak regularly on the telephone and text and see each other every fortnight with Ms Taylor spending the day with her mother - often cooking dinner or lunch, running errands, and providing her with other support.

• [29] Again, given the nature of the application, I start with Ms Taylor's counsel's version of Ms Lucas' evidence. He summarised the evidence as follows:

(a) Ms Lucas is 63, unlikely "to be able to cope with full-time employment", she is having serious health issues and, having lost all the hearing in her left ear, is now gradually losing hearing in her right ear;

(b) She works part time as a teacher (though she expects to work fewer hours in the future), and had a taxable income on 30 June 2023 of $87,991 - $82,645 for her work as a teacher and $9,120 'gross rent' - is married to David who earns $44,664 in his "reasonably successful window tinting business";

(c) She has four children including Naomi who is 28 years old and who has a connective tissue disorder, and is wholly financially dependent on Marianne and her husband;

(d) She has a net asset position with her husband of $2,578,509.91, including their home worth $1 million, superannuation (combined with David) of $665,230.89, a property at Burnett Heads worth $600,000, another property at Qunaba (in the Bundaberg Region) worth $450,000, and a mortgage liability of $284,018;

(e) She was always close to her parents, seeing them regularly, helping her mother to move after her father's death, and provided her with support and care, visiting weekly at least.

• [30] Ms Taylor submitted that searches show Ms Lucas' home may be worth $1,440,000 (not $1 million), and her Burnett Heads property may be worth $730,000 (not $600,000). She submitted that if the searches undertaken by Ms Taylor more accurately reflect the value of Ms Taylor's and her husband's real estate, the net value of their assets would be approximately $3,148,509, though the submission did not explicitly call upon the Court to act on that basis. Adopting the most generous version in favour of the applicant, I accept that submission, (though the capital value of the Burnett Heads and Quanaba properties, if required to be sold, would presumably be subject to capital gains tax).
• [31] However, that conclusion has only marginal impact on assessment of Ms Taylor's claim, at either the jurisdictional or provision stage because, taken as a whole, on either basis, Ms Lucas and her husband are in a comfortable financial circumstances in terms of their capital account, (all the more so after the interim distributions).
• [32] As to income, the evidence discloses that Ms Lucas is unlikely to be working into the future, and Mr Lucas's business does not produce a large income. In addition, I refer to [29](c) above. I do not understand the applicant to accept that Ms Lucas' daughter is wholly dependent on her now, and into the future. However, the evidence suggests, at the least, that Ms Lucas and her husband will be the financial fall back for their daughter for the foreseeable future, with NDIS support possible but not yet confirmed.
• [33] Adopting a conservative approach, Ms Lucas and her husband are reasonably secure but might come under some income pressure as they stop work and have to meet the needs of their dependent daughter.
• [34] Subject to the impact of the distributions made under the Will, there is no suggestion that there was a material difference in the above matters at the date of death and at the date of the hearing of the application, nor that they would materially alter before any trial.

• [35] The first matter to consider is whether, as at the date of death, "adequate provision is not made from the estate for the proper maintenance and support of" Ms Taylor. To dismiss the originating application I must be satisfied that the applicant's case on this issue is so hopeless as to amount to an abuse of the Court's process.
• [36] Ms Taylor's submissions do not address the jurisdictional question (not directly, anyway). However, the thrust of the submissions on that issue are as follows.
• [37] First, the estate at death was large enough to accommodate further provision if warranted, which is accepted.
• [38] Second, Ms Taylor suffers ill-health and cannot work, and never will, and is reliant upon a pension and her expenses exceed that income. For the purposes of this application, I accept that submission. She submits that since she stopped working, she has been financially dependent on her mother. In those circumstances, community expectations hold that provision be made for that "ongoing dependency".[13] I accept that financial dependence which a parent has induced and encouraged in an adult child can be relevant to the identification of proper maintenance and can, in some cases be a compelling circumstance informing that question at both stages of analysis.[14]
• [39] Further, she submits that the amount left to her is not adequate provision. She submits that without any unforeseen expenses or capital expenditures (for example, on repairs to her home or specialist mental health treatment) her present savings will be exhausted in fewer than 11 years. (This appears to be based on the present position, not the date of death).
• [40] Third, she submits that she had a close relationship with her mother and that contentious evidence to the contrary should be assumed in her favour in this application. I accept that should be assumed in this application.
• [41] Fourth, she submits that while Ms Lucas was a dutiful daughter to their mother, she has a significantly superior financial position. Again that proposition is accepted on this application.
• [42] The ultimate submission made, seemingly on both stages of assessment, is that the Court is not called upon to determine the provision to be made to Ms Taylor. Rather the issue presented is whether her application for further provision is hopeless and one destined to fail and that conclusion cannot be reached on the evidence before the Court.

• [43] Many family provision applications arise in circumstances where no provision is made for an applicant, or at the least provision which is self-evidently inadequate as merely symbolic. In such cases, establishing on a summary basis that a case is so devoid of prospects as to be an abuse of process might be particularly difficult. Atthow v McElhone [2010] QSC 177 was just such a case.
• [44] That is not this case. Based on [21] above, at the date of death Ms Taylor was entitled under the Will to $650,000, out of an available estate of $1.3m. The assets of the estate have been turned into cash, and administration costs largely paid, apart from the heavy burden of costs in these proceedings. That permits a confident assessment of the value of the estate at the date of death.
• [45] The question for the Court is therefore whether Ms Taylor's case that $650,000 is not adequate provision is so "useless and futile" as to amount to an abuse of process. That question must be considered in the light of the following matters specific to this application.
• [46] First, the evidence which was relied upon by both parties in this application was substantial. There was no suggestion that any additional evidence on any material issue was to yet to be prepared, nor that the evidence of either party would differ materially at trial. Ms Taylor did not submit that disclosure was yet to be sought on any issue. I assume that the evidence before me is the substance of the evidence in chief which will be tendered in each case at trial. That will not always be the case when an application for summary determination is heard.
• [47] Second, where there are disputes on the evidence, I have adopted the version most favourable to Ms Taylor, based Ms Taylor's counsel's submissions on that issue. The only exception is the inferences to be drawn from Ms Taylor's mown evidence as to her financial position, explained in [52] below.
• [48] Third, the principal difference between the evidential record now and at trial will be cross examination. However, on the facts of this particular case, cross examination is unlikely to materially improve Ms Taylor's case because I have accepted her evidence at its highest. Cross examination of Ms Lucas is also likely to be of limited impact. Firstly, I have accepted Ms Taylor's submissions as to the principal findings about Ms Lucas' position. Secondly, I consider Ms Lucas to have only a very limited need for financial support in any event, and that very limited need barely distinguishes her from a competing claimant with no demonstrated need. Thirdly, there is no dispute that Ms Lucas had a close relationship with her mother.
• [49] The consequence of the above considerations means that I am a better position than is normally the case to form a view as to whether Ms Taylor has a case that adequate provision has not been made under the Will that is not hopeless. I recognise that cross examination might throw up some unexpected and material consideration favouring Ms Taylor or perhaps less relevantly, harming Ms Lucas and make allowances for that possibility in my approach to the application. I also allow for the inchoate effect of seeing the witnesses.[15]
• [50] I accept each of the four points set out in [37], [38], [40] and [41], above. The point where my analysis diverges from that of Ms Taylor is in respect of the effect that the provision in the Will at the date of death would have had on her financial position. Ms Taylor's submission on that point is put at its highest in [39], above. It is unclear to me how the 11 years was calculated. I can see no basis upon which that is correct, whether the analysis is at date of death or date of trial. It is not linked to any specific analysis of Ms Taylor's evidence as to her financial position, in either affidavit.
• [51] Ms Taylor's first affidavit appears to set out her financial position as at the date of death. That is consistent with the lack of inclusion of the interim distributions. She states[16]:

54. Details of my assets and liabilities are as follows:

56. Details of my monthly income and expenses are as follows:

• [52] Ms Taylor's affidavits support the following factual conclusions as to her position at date of death:

(a) She owned her own home, which was worth $600,000;

(b) She had a mortgage and other debts of $173,000;

(c) She had no savings and was reliant for income on her pension and her mother's ad hoc support;

(d) Her monthly expenses exceeded her income by some $1,700 per month;

(e) She has significant mental health problems and, sadly (for someone so young), I assume as she contends that she is unlikely to work again.

• [53] Her mother appears to have made up her shortfall by relatively frequent payments. It can be inferred that those payments were made as required to keep Ms Taylor afloat, given that, despite the shortfall she complains of, she has been able to keep her mortgage serviced to the satisfaction of the mortgagor.
• [54] I accept that Ms Taylor had a close relationship with her mother. Perhaps more important than that, however, is my acceptance of her evidence that she had an ongoing dependent financial relationship with her mother. Parents who continue to support an adult child and cause or induce a relationship of ongoing financial dependence come under a particular responsibility when questions of adequate provision arise. However, the deceased did make provision for her dependent adult daughter, the question is whether it is vexatious to argue it was not adequate provision.
• [55] Based on Ms Taylor's evidence, at the date of death, assuming she used the provision in the Will to pay off her mortgage and other small debts first, it would have left her in the following position:

(a) She would have been debt free and the owner of her unencumbered home, worth $600,000;

(b) Ms Taylor's monthly income shortfall, once the mortgage and Credit Corp loan was discharged, would have been reduced to $500 per month,[17] or of up to $700 a month, if her second affidavit on expenses is more correct[18];

(c) Ms Taylor would have had a capital sum of $477,000 remaining;

• [56] Ms Taylor speaks of needs she has for immediate works to be done on her house and car and for improved mental health treatment.[19] No estimate is given of the cost for those needs. The order of magnitude of this kind of need that provision could rightly seek to address is informed somewhat by Ms Taylor's own evidence as to the amounts she has spent from the interim distributions on such matters. She swears to be spending some $26,000 on maintenance for her home, and vehicles, and mental health and health needs.
• [57] She also refers to an intention to sign up for a gym at $700 per year, and to the possibility of special mental health treatment as $2,000 per year. On a monthly basis, such expenses will be largely covered by income from $400,000.
• [58] If $77,000 was allowed for all those immediate costs, however, Ms Taylor would have been left with a capital sum of $400,000. The interest on that capital at a very conservative 3% is $12,000 per year. That sum covers her monthly shortfall, with an additional sum of some $5,000 available. There seems no possibility of her paying any substantial tax on her income.
• [59] Ms Taylor swears that she lives a modest lifestyle. It relevantly informs the outer boundaries of what proper maintenance and support call for on Ms Taylor's best case. While it appears Mr Taylor has no partner to provide support in life, neither does she have any dependents. The whole of the provision in the Will could be deployed by her for her own maintenance and support.
• [60] A person owning their own home and car (renovated and repaired, as Ms Taylor suggests) with a capital sum of at least $400,000 remaining can fund a modest lifestyle, especially when supplemented by social security income support. No suggestion was made that Ms Taylor's pension would cease or be reduced in those circumstances.
• [61] To succeed on this application on the jurisdictional issue, the executors must establish that the continuance of the proceedings by Ms Taylor contending that the Will did not make adequate provision at the date of death is so futile and useless as to comprise an abuse of process. Although the burden is a heavy one and lies on the executors, where very substantial provision is made for the applicant, the applicant assists her cause by pointing to considerations which might falsify that proposition.
• [62] I have great difficulty in accepting the proposition that a person with assets of $1m, including an unencumbered house and $400,000 in savings, has not received adequate provision; especially a person who swears to be living a very modest lifestyle with no dependants. That is so even allowing for the mental health issues which Ms Taylor speaks of.
• [63] None of the cases cited in the applicant's outline support the proposition that the provision in the Will was not ample, indeed they tend to support the executor's contentions, if anything. I recognise that most cases in this area are not resolved by contested hearings. I also recognise that family provision matters are so variable that other decisions provide very limited assistance in their resolution. However, a review of recent decisions of this Court and the Supreme Court identified two judgments of some assistance.
• [64] The first is Grimsley v Paul [2021] QSC 78. In that case, a stepdaughter applicant sought an order for further provision from the estate of her deceased stepfather. The stepdaughter was 67 years old, single, had been unable to work since 1999, and received a disability support pension. The net distributable estate was approximately $4.4 million. The applicant sought provision of $900,000, in lieu of the $215,000 gifted to her under the deceased's last will. Martin J awarded a total provision of $750,000.
• [65] Justice Martin found that the provision made for the applicant was inadequate, observing relevantly at [38]:

(a) the estate is a large one,

(b) the applicant suffers from a number of substantially disabling medical conditions all of which existed at the time of the testator's death,

(c) the estate of her mother, which she might have expected to share in, was left almost entirely to the testator,

(d) she has an ordinary life expectancy of a further 21 years with little by way of income and substantial medical expenses which she will continue to accrue,

(e) while she has, as part of her assets, a half share in the Perth property, should [the other joint tenant] wish to dispose of the property then she would be left without a place to live and would find it very difficult - if not impossible - to purchase an equivalent property.

• [66] The award was to recognise the personal and medical difficulties which the applicant would continue to face and ensure the applicant could obtain accommodation of the same quality and have reasonable security in the event of (e) above. The applicant's position was assessed by his Honour in the context of the competing beneficiaries under the will having no relevant need: one did not particulars of their financial position, and the other was, on the material, in a comfortable financial position. As to the applicant's moral claim, it was relevant that a large part of the deceased's estate comprised the stepdaughter's biological mother's estate. That included the remaining one of two ordinary shares in a company that had been held by the applicants' biological mother, and the remaining share in real property which had been held jointly by the deceased and the applicants' mother.
• [67] While Ms Taylor is younger than the applicant in Grimsley, she also does not have the same risk to her place of residence. Quite the contrary. The application of $173,000 is sufficient to ensure she is the owner of her own home, unencumbered; the home which she understandably submits is the place where she wishes to continue to reside. The $650,000 provision under the Will would leave her in a substantially better position than the applicant in Grimsley, even allowing for moderate inflationary conditions since then. Further, the provision made by his Honour was out of a much larger estate, with equivalent circumstances for the competing claimants. The status of the applicant as a step daughter is not a distinguishing feature given his Honour's orthodox analysis of the consequences of the natural parent's estate largely passing to the step parent. Bearing in mind my comments in [63] above, Grimsley provides considerable support for the proposition that adequate provision was made by the Will.
• [68] Also worth noting is Niebour-Pott v Pott [2020] QSC 7. In that case, the deceased had made provision in his will for his second wife, and three children of his first marriage to the exclusion of the applicants, who were two children from a third relationship. The applicants each sought further provision of $473,750 from the estate, which was valued at $3.8 million at the time of the testator's death. Justice Ryan found that adequate provision had not been made to the applicants. At [223], her Honour reasoned that:

A wise and just testator would have taken into account, in making some provision for Cameron and Naomi, that his estate was not small; they were his children; he controlled his relationship with them and the contact they had with him (that is, they were not responsible for his estrangement from them); they were unlikely to find employment; their life ahead was likely to be difficult because of their ASD; they had a need for care and support, including professional care and support, because of their ASD; their mother's finances were limited; and there was no suggestion of any other needs based claim upon his estate.

• [69] Her Honour found that the testator failed in fulfilling his moral duty to the applicants, in that the community would not expect the deceased to leave the most vulnerable of his children dependant on welfare whilst providing for his children who were able to meet their needs from their own resources.
• [70] Her Honour awarded the applicants $400,000 each. The bases for her Honour's award included that the applicants required maintenance, which they could not afford; without the applicants' elderly mothers' support, in the future, the applicants would find it difficult to meet the usual outgoing of the property from their combined pension; costs of the property's repair and maintenance was to increase as the property aged; the size of the estate; the applicants' obvious need for private health care; the applicants' need for financial security; and, given their dependence on their mother, the applicants' future demands for psychological or mental health support upon their mothers' eventual passing.
• [71] Her Honour found that the availability of the applicants' respective NDIS support or pension did not relieve the deceased from the applicant's claim upon the estate, in the circumstances of the case.
• [72] The estate's net assets were valued at $2,014,381.30 at the time of trial. The balance from the estate's value at the time of the testator's death was largely attributed to $1,134,536.03 incurred in legal costs in the intervening period, comprising expenses in those proceedings before her Honour, and separate litigation. It was relevant to her Honour that the deceased's third wife (who was the executor of the estate) and children of the deceased's first marriage were unfazed by the depletion of the estate in the pursuit of uncommercial litigation. The award still accounted for a preservation of the deceased's third wife's position as the beneficiary to whom the deceased wished to be most generous, and gifts of reasonable size to the three children of the deceased's first marriage, as the deceased intended. However, the awards recognised the needs-based claims of the applicants upon the estate in the context of the other claims by claimants without needs.
• [73] That case is less directly comparable. However, even where a large estate is available, and applicants are significantly disadvantaged, without their own home, and of a young age, the provision made was well below Ms Taylor's provision under the Will.
• [74] Ms Taylor's submission (to the extent it addressed the jurisdictional issue separately) amounted to no more than the proposition that adequate provision might be more than $650,000, bearing in mind that there were funds available to make further provision.
• [75] I recognise that the estate was large enough to accommodate further provision for Ms Taylor and that Ms Lucas' position was such that modest further provision could reasonably be made at her expense. I also recognise that the provision made under the Will would not equalise Ms Taylor's standard of living with that of her sister. However, entitlement to further provision is not concerned with equalising the standard of living of siblings any more than it is concerned with equalising inheritance of siblings. It is concerned with ensuring adequate provision for the applicant, determined in accordance with the criteria established by authority.
• [76] Ms Taylor's submission that it was not unarguable that the provision in the Will was not adequate amounted to, ultimately, no more than a request for more than she was provided under the Will, just in case. For the reasons given above, I consider that argument is doomed to fail. I am satisfied that the application should be dismissed as an abuse of process.

• [77] If I am wrong on the jurisdictional stage, I should turn to considering the provision stage. It is worth considering this separately because, in this case, the provision stage involves the consideration of a much reduced estate.
• [78] It is worth repeating this observation in Charlesworth:

[17] While I consider it would be open to the Court to dismiss the proceedings if the applicant's case on stage one was not untenable but the applicant's case on stage two was untenable, it would be a heavy burden to establish the latter matter on a summary basis. There are any number of possibilities as to how matters might play out both before and at the trial. Costs might be less than anticipated (though in my experience that rarely happens). The value of the estate might be increased during the litigation phase and so on. It might be that in most cases, the position as at completion of the trial is so speculative as to make any certain conclusion that a claim is untenable impossible practically to establish.

• [79] This case is an exception to most cases.
• [80] First, as noted in [46] above, the evidence of the parties appears complete. There is no reason evident why it cannot be promptly listed for trial. The only material step remaining is the conduct of a mediation, which has been delayed pending resolution of this application. Experience dictates that that is not a step which needs a long lead time, at least for a family provision matter. Failing settlement, the trial will be, at most, two days. The civil list in Brisbane can accommodate such a trial on relatively short notice. There is no reason why the trial needs to be more than three months from now. Accordingly, the uncertainties which can exist in assessing the applicant's case on the exercise of discretion at a trial far in the future are very much less.
• [81] Second, neither the estate, nor Ms Taylor's position, nor Ms Lucas' position seem likely to materially change between now and the trial:

(a) The estate's assets are in cash;

(b) Mr Taylor's health position will hopefully improve from the impact of the $404,000 already paid to her by interim distribution, but it is unlikely to materially decay from a need perspective between now and the trial. That is because her evidence is taken at its highest, which assumes she will never work again and needs funding for extra psychological treatment; and

(c) Ms Lucas' position is also a stable one.

• [82] Third, in this case the costs incurred and the likely impact of those costs of the substantive outcome at trial, on the best case for Ms Taylor, can be assessed with reasonable confidence, as I explain from [84], below. It will often not be so when an application for summary dismissal is considered. Costs outcomes can be fundamental and difficult, and therefore hard to predict on a sum[20]ry basis.20

• [83] It is frequently the case that the key issues of the size of the estate and the financial position of the applicant are relatively constant between date of death and date of trial, subject to the impact of costs. That is not this case, because of the interim distributions. As of the date of hearing, following the interim distributions and payment of some of the executors' costs of the matter, the sole asset of the estate was cash totalling $444,000; much less than at the date of death. That is a small estate.
• [84] The likely impact on costs on a small estate will be very important in assessing whether an application for further provision is an abuse of process when considered from the perspective of the (discretionary) provision stage. While costs are ordinarily difficult to estimate, even on a very conservative basis favouring the applicant for provision, some firm conclusions can be reached in this case.
• [85] As of November 2023, the executors estimated costs to trial of the application of $50,000 to $70,000.
• [86] In September 2023, the applicant said her costs up to mediation would be $33,000 to $55,000, and from mediation to trial of $55,000 to $70,000; a range of $88,000 to $125,000.
• [87] While these estimates are not particularly dated, neither party gave current amounts for costs incurred nor costs likely to be incurred to trial estimated as of the date of the hearing. Further, the executors did not explain how much of their costs had been paid already (thus already impacting on the amount remaining in the estate). Given the nature of this application to dismiss, I make assumptions favourable to the Ms Taylor:

(a) Ms Taylor will get her costs paid from the estate if successful at trial;

(b) If successful at trial, it is likely her total costs on an indemnity basis from this point on will be at least $100,000, being the midpoint of the September estimate;

(c) The executors will get their costs on an indemnity basis from the estate, even if Ms Taylor is successful at trial. That seems likely because it is plain from the evidence that it is highly unlikely that the executors' conduct in defending the proceedings will be unreasonable. Those costs will be at least $35,000 on top of costs already drawn from the estate.

• [88] On those assumptions, at trial there will only be something of the order of $305,000 at most left in the estate after costs ($440,000 - $135,00). That is the maximum sum it is reasonable to assume will be available at trial for a Judge to make an order for provision for Ms Taylor.

Ms Taylor's likely financial position at trial

• [89] Ms Taylor's financial position was materially altered from the date of death by receipt of the interim distributions. Her second affidavit set out her position post receipt of those funds. It stated her financial position as follows:[21]
  1. Details of my assets and liabilities have changed, most notably the value of my home and the receipt of interim distributions:

1. Details of my monthly income and expenses have changed, most notably an increase in mortgage repayments and costs of living but also an increase in my pension:

• [90] Ms Taylor has not discharged her mortgage and her Custom Credit debt with the funds received from the Will. It is difficult to think of how that can be a sound financial decision. Mortgage rates are relatively high, and inevitably higher than deposit rates. And the Custom Credit debt appears to attract an interest rate of 20%. Holding cash instead of discharging her debts makes her position monthly look much worse than it otherwise needs to be.
• [91] (Further, there is no explanation as to why the income from the $293,000 she has on deposit with the Bendigo Bank is not included in her income. At a very modest 3%, that deposit will produce income of some $8,500 per year, or $732 per week. That reduces her monthly shortfall to $1,500 per week.)
• [92] I do not think the Court is required to accept Ms Taylor's allocation of her available funds in considering what adequate provision would be made at trial. There is no hint of any liability which requires the sum of $293,000 to be held in cash, while maintaining the costly mortgage and Custom Credit debt. In considering her likely financial position at trial, I assume (as Mr Klevansky submits) that Ms Taylor discharges her mortgage along with the Credit Corp debt from her cash funds, leaving her with:

(a) No debt and a capital sum of $122,000;

(b) A monthly shortfall of about $700 per month, along with some income on her capital.

• [93] There is another difficulty with Ms Taylor's evidence. Ms Taylor received $404,000 cash from the estate. Her assets and liabilities post receipt of those funds does not account for $110,000 of those funds. Ms Taylor explains the use made of, at most, $30,000 of those funds (see [56] above). That leaves $80,000 unaccounted for. In Ms Taylor's very modest finances and lifestyle, that is a very large sum.
• [94] Again, given the nature of the executors' application, I assume that there is a reason for the use of those funds which would not impact on the discretion at trial to order provision for her out of the remaining estate. All that can be made of that matter in the context of this stage of the analysis is that Ms Taylor also received $80,000 from the Will, not accounted for in her assets and liabilities, which are a benefit received from her mother.
• [95] Nothing needs to be said about Ms Lucas' position other than that her comfortable position has been improved by receipt of $404,000 in interim distributions.

• [96] Mr Klevansky's submitted that the application was an abuse of process looked at from the discretion stage because:

(a) Ms Taylor's case for further provision was hopeless; and

(b) Her claim for further provision was, in any event, an abuse of process, because costs up to the end of the trial would so diminish the estate as to make the proceeding futile and an abuse of process when compared to her entitlements under the Will at the date of death and at the date of this application.

• [97] Mr Crofton's submission was that there would be funds from which further provision could be made at trial and that, accordingly, it cannot be said that the application is an abuse of process (bearing in mind his other submissions about need and the competing claim of Ms Lucas).

• [98] Under the Will, at the date of trial Ms Taylor's position will be no worse than the following. In an estate worth not more than $305,000:

(a) She will have an unencumbered house worth $550,000 and no debts;

(b) Capital of $274,500, made up of her existing $122,000 plus her entitlement to half the estate under the Will, which I calculate at $152,500.

• [99] The precise question to be addressed is this: is Ms Taylor's case, that the Court should exercise its discretion to order further provision, so hopeless as to be vexatious and an abuse of process?
• [100] Looked at from the perspective of need only, I consider that Ms Taylor's claim for further provision at trial is not utterly hopeless. Oddly, because of the failure to explain the fate of $80,000 of the interim distribution, Ms Taylor's position at trial is materially worse than at the date of death, if the provision under the Will is considered. It is at least arguable that a further small capital sum might be justified to provide a sufficient capital buffer. However, that is not the end of the matter.
• [101] Bearing in mind the matters in [83] to [88], at trial there will be at most $305,000 in the estate from which provision could be made for Ms Taylor. At trial, Ms Taylor will be entitled to $152,500 of that net sum. Therefore, the maximum further provision Ms Taylor could obtain if successful at trial is $152,500. I cannot see any arguable basis, even in the light of the matters in [98] to [100], for further provision of more than $80,000 to $100,000 (to put her in the position she would have been in under the Will).
• [102] A comparison of that outcome to her present position is relevant. Presently, she is entitled half of the funds in the estate, being $222,000. If she litigates and is successful, the maximum extent to which she could be better off at trial, as compared to her position at the date of hearing this application, is about $70,000. Depending on costs it might be a good deal less.
• [103] A comparison of that outcome to her entitlement at the date of death is also worth considering. Her entitlement at that date was $650,000. If successful at trial on the assumptions I have made, she would ultimately obtain from the estate, as a whole, some $709,000 (interim distributions of $404,000, plus remaining estate at trial of $305,000); not more than about 60,000 more than her provision under the Will.
• [104] A very conservative estimate of the costs incurred or to be incurred to obtain those very modest increases from provision under the Will is costs of $135,000, plus litigation costs already paid by the executors, potentially another $25,000, at least, for a total of some $160,000.
• [105] So, the question can be distilled down to this: is it an abuse of process to continue with a proceeding for further provision in circumstances where the best possible outcome is that the applicant obtains about $60,000 more than the provision under the Will at the date of death, and about $70,000 more than provision under the Will presently available, at a cost to both parties of $160,000?
• [106] In my respectful view, in the circumstances of this case, the answer is yes.
• [107] First, while I can accept that $60,000 to $70,000 is a substantial sum for a person in Ms Taylor's position, that sum must be considered in proportion to the provision made in the Will and the costs to be incurred to obtain it. The provision under the Will is more than of the order of ten times those amounts.
• [108] Second, the additional $59,000 which could theoretically be achieved at trial over the provision under the Will at death involves incurring $160,000 in costs to secure it. That is utterly disproportionate. The position is not much better comparing the outcome at trial to the current position, where the additional $69,500 will require $160,000 to secure it.
• [109] Third, the fact that the applicant's case falls to be considered in the context of a small estate is the result of her own decision not to bring an application until, at best, the last day of the period provided under the statute, and after 60% of the estate had been distributed with her consent to her.
• [110] Fourth, as I find above, it is arguable that Ms Taylor might obtain further provision from the estate. However, that case is no more than arguable, and far from certain.
• [111] Fifth, the likely exposure of the small estate to costs would have been clear to Ms Taylor (or at least her advisers) when she began these proceedings. Nothing unusual or unexpected has occurred since then.
• [112] I have accepted that (if I am wrong about my conclusion at the jurisdictional stage) then it is arguable that at trial, Ms Taylor might receive modest further provision. However, that does not exhaust the doctrine of abuse of process in this particular case.
• [113] A proceeding can be an abuse of process where it can be characterised as a use of the Court's procedures which would bring the administration of justice into disrepute. The kinds of conduct which might fall into that category cannot be exhaustively defined.
• [114] I act on the basis that Ms Taylor is not deliberately using the Court's process to bring about the ulterior purpose of ensuring that her sister receives nothing more from the estate by absorbing, effectively, her share in costs in the proceedings. However, that does not exclude a finding that the proceedings are an abuse of process. Use of Court process for an ulterior purpose is just one example of conduct which can involve misuse of the Court's processes. Further, it is not necessary to establish deliberate misconduct for the doctrine to apply. In Clark v State of New South Wales (2006) 66 NSWLR 640[22], Johnson J explained the position (in the context of destruction of evidence):

[61] In Batistatos, the High Court determined that it was not necessary that there be an element of contumelious disregard, oppressive conduct or moral delinquency before the power to intervene with respect to abuse of process could be exercised. In this regard, the Court determined that statements to this effect in Birkett v James [1978] AC 297 ought not be followed in Australia: Batistatos. Gleeson CJ, Gummow J, Hayne J and Crennan J said (at 1116 [70]; 442 [70]):

"[70] What Deane J said in Oceanic Sun Line Special Shipping Company Inc v Fay [(1988) [1988] HCA 32; 165 CLR 197 at 247] with respect to the staying of local proceedings, is applicable also to a case such as the present one. His Honour emphasised that there was no 'requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff'; what was decisive was the objective effect of the continuation of the action. (Footnote omitted)"

I note that Batistatos was a case involving abuse of process by reason of delay and not conduct of the type involved in this case. Nevertheless, the statements concerning the elements of abuse of process assist in the resolution of the present case.

• [115] It has been recognised that a proceeding might be an abuse of process, even if not demonstrably hopeless as to obtaining some form of remedy, if the proceedings have no real prospect of resulting in a substantial remedy and involve unjustifiable expense and use of judicial resources. A good starting point is the decision of the New South Wales Court of Appeal in Jones v Sutton (No. 2) [2005] NSWCA 203, where the Court (Beasley JA, Santow JA and Stein AJA) observed:

48 There has been considerable emphasis in the courts in recent years on litigation being conducted justly, quickly and cheaply. In the Supreme Court, the overriding purpose of the Supreme Court Rules (SCR) is to provide procedures that will promote the "just, quick and cheap resolution of the real issues in ...proceedings": SCR Pt1 r.3. The District Court has promulgated a practice note to the same effect: Practice Note No 57. (The Practice Note has the status of a Statutory Rule: DCA s 171(7)). In both jurisdictions the intention is that timely compliance with the procedures under the Rules will promote the efficiency of litigation and thus achieve the stated object.

49 In this case, there is no charge that the appellant failed to comply with the rules in a timely manner. However, the objective of the justice system to resolve disputes in a "just, quick and cheap" manner is not confined to ensuring there has been compliance with the Rules of Court. The concern extends to the manner in which proceedings are conducted and the extent to which small claims ought to be permitted to luxuriate in the justice system. This concern was succinctly articulated in Afzal v Ford Motor Company Limited

[1994] 4 All ER 720 where the Court of Appeal said at 747:

"For many people a s mall claim for damages for an injury sustained at work will

be their only experience of the working of the system of justice. If those who

advise employers and employees in such claims disregard the objects of the small

claims arbitration procedure, the law as a whole is likely to be brought into

disrepute. If it is seen that in a significant class of claims procedural battledore

and shuttlecock is costing far more than the amount of damages recovered, the

• [116] In Geneva Laboratories Limited v Nguyen [2014] FCA 1270, Gleeson J adopted those observations and articulated the point in this manner:

55. Other grounds for summary dismissal are that the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding, or no reasonable cause of action is disclosed.

56. A matter is frivolous and vexatious where the "cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the Court.": Norman v Matthews (1916) 85 LJKB 857 at 859.

57. Proceedings may be an abuse of process if brought for a collateral purpose. The essential question for determination is whether or not the proceedings, and the particular claims made in them, are genuinely intended to be determined in the proceedings: Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134 at [64]. Proceedings may also be an abuse of process if they have no real prospect of resulting in a substantial remedy and involve unjustifiable expense and use of judicial resources. Alternatively, a significant disproportion between the judgment amount and the costs of the proceedings may justify depriving an otherwise successful plaintiff of a usual costs order: Jones v Sutton (No 2) [2005] NSWCA 203.

• [117] Her Honour's underlined observation has been echoed in other decisions.[23] These cases usually involve proceedings where utterly disproportionate amounts of costs have been incurred for pyrrhic victories, with reference being made to the obligation imposed by the cognate rule to r. 5 of the Uniform Civil Procedure Rules.
• [118] However, whether an abuse of process is established must be considered in the context of the particular proceeding. Here it can be accepted that an award at trial that is $60,000 to $70,000 better than the provision under the Will (judged at the date of death or the date of application, respectively) is not a nominal success, though it is compared with provision under the Will and to a lesser degree her entitlement under the Will as of this hearing. However, there are other matters to consider.
• [119] The purpose of s. 41(1) of the Act is provide a mechanism, for person's entitled in the view of Parliament to provision by a deceased person, to approach the Court where the deceased person has failed to meet his or her duty to provide for that person. The pursuit of small amounts of provision from small estates will frequently be justified where the applicant is in dire need and even small sums might assist. However, that is not this case. Here the applicant seeks to continue to pursue expensive proceedings for the opportunity to obtain, at best, a relatively small increase in her provision compared to the provision under the Will, both at date of death and at the date of this application. She seeks to do so in circumstances where success at trial will, in substance, result in her shifting the large burden of costs of her proceedings onto the other beneficiary.
• [120] Such conduct can undermine community support for the policy of family provision claims. Whether it does so or not, however, it is conduct which involves unjustifiable expense for a limited opportunity at a remedy which is insubstantial compared to the position the applicant would have been at the date of death and at the date of trial. Cases of this kind bring the administration of justice into disrepute and can be an abuse of process.
• [121] Whether a proceeding is an abuse of process is not a discretionary judgment. It involves the application of a fixed legal standard, albeit one which has evaluative qualities.[24] In my view, on the material before the Court, the continuation of these proceeding would be an abuse of process, even if the originating application at the provision stage is not itself utterly hopeless.
• [122] It will be a rare case where this conclusion can be reached on a summary basis. However, in my opinion, this is such a case. The originating application should be dismissed on this basis as well.
• [123] I will hear the parties as to costs.

[4] See the authorities cited by Brown J in McDermott v McDermott [2023] QSC 163at [43]

[5] Baker v Baker (No 1) [2019] QDC 92 at paragraph [5]

[7] Sellars v Maeyke [2005] QSC 368 at [37]- [39]; Atthow v McElhone [2010] QSC 177 at [19].

[8] Atthow v McElhone [2010] QSC 177 at [20] being just an example of the general principle applicable in proceedings for summary determination.

[9] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9] - [15]

[10] John De Groot and Bruce Nickel, Family provision in Australia (LexisNexis Butterworths, 5th ed, 2016) 7.11

[13] Taylor v Farrugia [2009] NSWSC 801 at [58]

[14] Waters v Odell [2023] QDC 44 at [210] to [211]; Bolger v McDermott [2103] NSWSC 919 at [364]

[15] The advantage recognised in the context of appeals by way of rehearing in Fox v Percy (2003) 214 CLR 118 at [23]

[17] Calculated by deducting her monthly mortgage repayment of $1,100 and her credit card debt repayment of $100 from her estimated monthly shortfall of $1695.80.

[19] Taylor CD 5 at [51]; Taylor CD at [16] and [17]

[20] Odell v Waters [2023] QDC 44 at [219] to [237]

[22] GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857 did not deal with this issue

[23] Ghosh v Miller (No 2) [2017] NSWSC 791 at [45]; Armstrong v McIntosh (No 2) [2019] WASC 379 at [116]

[24] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 at [15] and [26] (per Kiefel CJ and Gageler and Jagot JJ)