Trim v Day[2007] QDC 314

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application to strike out an application under part 4 of the Succession Act 1981.  The originating application was filed as long ago as December 2003 and it does not appear that matters have been advanced very far since then, although it may be that much of the delay has been attributable to attempts on the part of the respondent executrix to locate a daughter of the deceased for the purpose of giving notice of the application.  That notice apparently was finally given in late 2006, and that daughter has not responded to the notice, so presumably she is not interested in applying.

2. [2]
   The deceased died on the 13th of June 2003, and under his will, which had been made in 1991, left his entire estate to his nephew, the son of the executrix.  That estate seems to have consisted principally of his interest, the deceased's interest, in a property which was owned together with the applicant in proportions of 80 percent and 20 percent. 

3. [3]
   The property has subsequently been sold, and together with a small amount in a bank account and some chattels, has produced a gross estate of about $132,000. There will be administration costs and I expect costs associated with this litigation to come out of that, so it is a small estate.

4. [4]
   The applicant is a person entitled to apply as a spouse, having been living in a de facto relationship with the deceased for at least five years prior to the date of his death, terminating on his death. She was the owner at the time of 20 percent of the property in which they were both living, and she has received her share of the sale proceeds of that property. She also owns another property. She has been in employment for a long time and that employment preceded, continued during the de facto relationship, and is continuing.

5. [5]
   The situation is that the respondent has now applied to strike out the application on the ground that the applicant cannot succeed because the applicant cannot show that there has been a failure to provide proper support, which is the first step in an application of this nature. Unless the Court can be satisfied that there has been a failure to provide proper support to the applicant in the will of the deceased, then no order can be made under section 41.

6. [6]
   This is, in a sense, the first stage of a two-stage process discussed by the High Court in Singer v. Berghouse (1994) 181 CLR 201, and more recently in Vigolo v. Bostin [2005] HCA 11.  It is sometimes described as the jurisdictional question, although I think it is more correct to say that it involves a finding of fact which is the basis of the Court's jurisdiction to grant the relief contemplated by section 41.

7. [7]
   I think there is no doubt that an application can be made in a proceeding of this nature to strike out an application seeking relief under the Succession Act. Such an application succeeded in Higgins v. Higgins [2005] QSC 110, where it appears that her Honour applied the test appropriate for an application under Rule 171 of the UCPR, the General Steel Industries Test:  See [1964] 112 CLR 125 at 129.  In that case her Honour, after a consideration of the evidence, concluded that the application was bound to fail. 

8. [8]
   In the present case, although a significant volume of material has been read, there is actually not a lot of evidence about what I think is an important question, whether and to what extent the deceased was actually supporting the applicant at the time of or immediately prior to his death. The deceased was working as a truck driver, so he had an income as well.

9. [9]
   The applicant's material says that from Christmas 1997 they were cohabiting on a genuine domestic basis. She refers to an initial period, which is not defined, in which the deceased would purchase the household groceries. She says that there was a period of eight weeks in 1998 when she financially supported the entire household; inferentially, she was not required to do that for the balance of the period between Christmas 1997 and the death of the deceased, although I suppose that is a matter of inference.

10. [10]
    She does depose to the fact that ordinarily the deceased was responsible for making mortgage payments on the property which, as I say, was owned 80 percent by the deceased and 20 percent by the applicant, having been purchased in May 1999. Prior to that it appears that the parties were living at a property owned by the deceased.

11. [11]
    The property was purchased with money borrowed by both of them, both using the separate properties that they owned at that stage as security. The applicant has been unable to determine how it came about that the title was transferred to them as tenants in common in those proportions; at least that is what she says. Subsequently the deceased sold the property that he had held in his own name. According to the applicant, to the extent that that produced a surplus, the money was used on a new engine for his truck.

12. [12]
    Apart from this there is not a great deal of information about financial support in the affidavit; however it does seem to me that on the face of it the ordinary inference is that they were living together and they both had an income so that one would expect that to some extent at the very least joint expenses would have been shared. There would have been at least some financial advantage to the applicant in the arrangement, and given the nature of the relationship between them, she would have had some reasonable expectation that there would be at least to some extent some continuation of such support as was being provided.

13. [13]
    On the whole I do not think that the material justifies an inference that there was no actual support at the time up to the death of the deceased from the deceased. Where an applicant under section 41 can show that the death of the deceased has led to the loss of what had been actual support prior to that time, it seems to me that prima facie there is an entitlement to some provision if the will fails to provide some reasonable replacement for the financial support which has otherwise been lost. At the very least, such a proposition seems to me fairly arguable.

14. [14]
    I am a little concerned by something that her Honour said in paragraph 46 of her reasons in Higgins, suggesting the correct approach is to assume that the evidence currently available on behalf of the applicant is the best it can be.  It may be that that was based on the particular circumstances of that case.  I would have thought that ordinarily, on an application to strike out, it would be a matter for the applicant on that application to show that the application was bound to fail or at least was not seriously arguable, and therefore should be dismissed summarily, rather than the other way round. 

15. [15]
    On the other hand there have been for a long time practice directions requiring material in support of an application to be filed with it. I think that if I came to the view that ultimately there was insufficient in the applicant's material to justify some inference that there was some actual loss of support, then what I would do would be adjourn the application to enable the applicant to put on more material.

16. [16]
    However, I think that on the whole and read fairly that existing material does provide at least an arguable basis for a version that there was some actual loss of support as a result of the death of the deceased, and that on that basis the applicant has at least enough of a case to get past the General Steel test.  In those circumstances this application must fail. 

17. [17]
    I should say that this is the second application I have had now where attempts have been made to strike out summarily family provision applications on the basis of the decision in Higgins.  In that case the value of the estate was of the order of $2 million.  Where there is an estate of that size no doubt litigation can be conducted on a more lavish scale.  Estates in the District Court tend to be fairly small anyway, and this one is quite small. 

18. [18]
    I would strongly discourage parties from making unnecessary applications to strike out what seem on the face of it to be unpromising applications for family provision in this way in this Court where the estates are small. In my view if the respondent thinks that the application is hopeless, then the appropriate response is to bring it on for a trial. As it is there has probably been as much time and effort spent today dealing with this application, and probably as many legal costs incurred, as would have been the case in having the matter heard and determined. That would have been, I think, a far better use of them.

19. [19]
    So I would strongly discourage parties from making applications of the kind that was made in Higgins in this Court.  I think they are a waste of costs.

20. [20]
    The application is dismissed. I will order the respondent, Kay Day, to pay the costs of the applicant, Alison June Trim, of the respondent's application filed the 5th of September 2007 personally, fixed in the sum of $2,000. On the applicant's application I will order there be no mediation and order the originating application be placed on the callover list for the next civil callover. I order that the applicant's costs of the application of 26th of September 2007 be the applicant's costs in the proceeding.