Charlesworth v Griffiths[2018] QDC 115

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the executors of the estate of Mr Kenneth Tandy for the summary dismissal of an application by their sister, Mrs Charlesworth under s. 41(1) Succession Act 1981 (Qld) for further provision from Mr Tandy’s estate.
2. [2]
   For the reasons I now give, I dismiss the application.

Background

3. [3]
   Mr Tandy and his wife, Jeanette Tandy, were married for over 50 years. They had three daughters, the executors and the applicant. Mr Tandy died on 4 July 2017. His wife and daughters survived him. Mrs Tandy is 71 years old. The executors, Ms Griffiths and Ms Lydiard, are 34 and 31 respectively. Mrs Charlesworth is 37.
4. [4]
   Mr Tandy’s Will relevantly:

   1. (a)
      Appointed Ms Griffiths and Ms Lydiard as executors;
   2. (b)
      Left his shares in Manborough (the family trustee company) to the executors. These shares gave his executors control of the assets of the family discretionary trust (the Trust);
   3. (c)
      Gifted the residue to Mrs Tandy; and
   4. (d)
      Forgave any debts “which may be owing” by Mrs Charlesworth to him.

The law

5. [5]
   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.

6. [6]
   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.
7. [7]
   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.
8. [8]
   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.
9. [9]
   In Higgins v Higgins [2005] QSC 210, White J dealt with the issue in this way:

9. [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. Mr O'Neill for Malcolm contends that such an application is inconsistent with the purpose and spirit of Practice Direction No. 8 of 2001 – Family Provision Applications. That Practice Direction is lengthy and need not be set out in its entirety. Its objects are to reduce cost and delay by making information available at the earliest practicable date so that a realistic assessment of prospects can be made by all the parties; to encourage the early consensual resolution of such applications; and to minimise the number of court appearances. Clause 7 of the Practice Direction provides, relevantly, that the applicant must serve with the originating application a supporting affidavit(s) which must

“(a) show a prima facie case that the applicant is a person who is entitled to apply, that adequate provision has not been made and that the applicant is otherwise entitled to bring the application,

2. (b)
   provide details of the applicant’s assets and liabilities and sources of income,

...

11. (k)
    contain such other material as may be necessary to support the application."

10. [10]
    The applicant must include a draft directions order in the form in the schedule with appropriate variations with the originating application and affidavit(s) which contains a dispute resolution plan designed to exhaust the prospects of consensual resolution of the application, clause 8.

11. [11]
    Within 14 days of service of the originating application, affidavit(s) and draft directions order the respondent must sign and return the draft directions order or advise any alternative proposal. When the draft directions are settled between the parties the applicant is required to file the order in the Registry and it is operative from that date. If the parties are unable to agree the terms of directions either party may list the originating application before an applications judge, clause 9(d).

12. [12]
    Whilst the Practice Direction contains many of the provisions found in Practice Direction No 7 of 1982, it seeks to avoid the practice of treating the return date of an originating summons (as it was then) for provision underPart IV of the Succession Act as a directions hearing. Instead, the present Practice Direction requires the parties to regulate that step themselves and, indeed, where possible to conclude the matter consensually without returning to court. Under the previous regime if the respondent wished to argue, for example, that the applicant was not a person entitled to claim under ss 40 or 41, or that an extension of time ought not be granted, or that the estate was entirely distributed, or some other preliminary point it would usually be heard and determined at that preliminary stage, see the discussion in Re Marstella [1989] 1 Qd R 638. Furthermore an application for provision was required to show a prima facie case.

13. [13]
    A practice direction has uncertain status in legislative terms. It is expressly not subordinate legislation and therefore does not have the same status as rules of court, Supreme Court Act 1991, s 118D(1) and Statutory Instruments Act 1992, s 12. Nonetheless practice directions are authorised to be made by the head of jurisdiction, Supreme Court Act 1991 s 118D(2) and further, the court may, in its inherent jurisdiction to control its own proceedings, give appropriate directions, Supreme Court Act 1991, s 118E. Clearly practice directions must be followed and carried out by parties. However, I see nothing in Practice Direction No 8 or its objects which would support a submission that an application to strike out may not be brought prior to the exhaustion of the prospects of a consensual resolution which is the position taken by Mr O'Neill.

14. [14]
    In Re Marstella an application for provision under Part IV of the Succession Act was dismissed at the directions hearing. McPherson J (as his Honour then was) concluded that this could be done pursuant to RSC22 r 31 (striking out as disclosing no cause of action) or RSC22 r 28 (on a point of law). But this depended upon the meaning of "pleading" which, as defined in the Judicature Act 1876, included a summons, and "action", as meaning a civil proceeding commenced by a writ "or in such other manner as may be prescribed by Rules of Court", which included a summons. The definition of "pleading" in the Supreme Court Act 1991 reproduces the definition in the Judicature Act. However the definition of "pleading" in Schedule 4 – the dictionary – to the Uniform Civil Procedure Rules ("UCPR") means, for a plaintiff, "a concise statement in a claim of the material facts ..." and for a defendant, "the defence stated in a notice of intention to defend or a defence." It includes "an affidavit ordered to stand as a pleading".

15. [15]
    Rule 171(2) of the UCPR provides that a court may at any stage of the proceedings strike out a pleading on any of the bases set out in r 171(1)(a)-(e) including that a pleading discloses no reasonable cause of action. Although the UCPR are subordinate legislation, s 134 of the Supreme Court Act 1991 provides that they prevail over the provisions of the Supreme Court Act 1995 to the extent of any inconsistency. It seems plain that the jurisdiction of the court to apply the striking out rule to an application as occurred in Re Marstella in respect of an originating summons is not available. Nonetheless, 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. [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.”

10. [10]
    It is plain from this case, that the power exercised then dismissing applications under s. 41(1) of the Act brought by originating application is the inherent jurisdiction of the 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. [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. [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. [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. [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. [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. [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. [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.^[1] 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. [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. [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. [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. [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. [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.

The estate

21. [21]
    It is uncontentious that the only asset of substantial value in the estate is a beneficiary loan account owed to Mr Tandy by Manborough as trustee in the amount of $218,901. The value of the estate at the date of death therefore depends upon whether Manborough could repay the beneficiary loan account. As will be seen, it is plain that it was capable of doing so but only if the sole substantial asset of the Trust, the property at Railway Street, was sold. At the date of Mr Tandy’s death there was no substantial liabilities.
22. [22]
    The net value of the estate (after allowing for some small additional assets) was $183,000 at the date of the hearing. Adopting the applicant’s estimate of costs to the end of trial of $50,000, the value of the estate at trial will be some $130,000. I accept this is an extremely optimistic assumption, but an appropriate one on a summary dismissal application.

Mrs Charlesworth’s evidence

23. [23]
    Mrs Charlesworth has filed one affidavit. Although much of it appears likely to be disputed, as this is an application for summary dismissal, I take Mrs Charlesworth’s evidence at its highest. On that basis, her evidence can be summarised for the purposes of this application as follows.
24. [24]
    First, her father applied undue parental and moral pressure on her to pursue a career as a commercial pilot. She succumbed to that pressure and ultimately undertook an expensive commercial pilot training course. It appears to have cost some $50,000. She says her father undertook to pay that expense in various ways, but that in the meantime she, and then she and her husband, paid interest on the debt arising in respect of those costs. She says her father defaulted in various promises to pay out the loan and ultimately she ceased paying interest on the debt. The precise character of the loan in relation to the training costs was unclear but, if there was a third party lender involved, it seems it was ultimately paid out somehow. It is not mentioned as a liability by anyone in the matter.
25. [25]
    Second, she swears that she never undertook liability in respect of the training costs and that there was no loan to be forgiven by her father. Accordingly she contends (and I accept for the purposes of this application) that she obtained no benefit from the forgiveness in the Will.
26. [26]
    Third, she rebuts the suggestion that the estrangement with her father was her fault or was ultimately not resolved and rejects suggestions that she did not behave well towards him.
27. [27]
    Fourth, she explains her personal and financial situation as follows:

    1. (a)
       She is 37 years old and married with three children under 7 for whom she is (understandably) a full time carer;
    2. (b)
       The family relies on her husband’s income of $106,000 pa;
    3. (c)
       Family expenses exceed family income by some $30,000 pa;
    4. (d)
       They own and investment house and a residence with a total value of $1.4m and total mortgage debt of about $1m; and
    5. (e)
       They have a private business of negligible present value with a joint guarantee a loan for a company car for about $67,000.
28. [28]
    She swears that she and her husband have a difficult cash flow position and are distressed and worried about their position. She also swears that her on-going mental health problems from her failed flying career are worsened by her “hand to mouth” financial situation. She swears that her mental health issues caused by her flying career inhibit her ability to work, though she does not say that she cannot work.
29. [29]
    It is understandable that some or all of these facts might be disputed by others in the family. The financial evidence does raise some questions, such as why the investment property could not be sold to relieve financial pressure and how the income and expenses of the investment property are dealt with. The evidence also appears to ignore tax generally. However, I assume that that evidence is correct for the purposes of this application.

Mrs Tandy’s position

30. [30]
    No competing claim is advanced by any party other than Mrs Tandy. Her counsel contends that the Court can properly conclude that this matter ought to be summarily dismissed because of the strength of Mrs Tandy’s claim as a long standing widow. The strength of her claim in that regard depends in large part on her overall financial position both at the date of death and (as I will explain) the date of a likely trial.
31. [31]
    Mrs Tandy’s financial position as at the date of death can be summarised as follows.

    1. (a)
       First, she owned the beneficiary loan owed to her by the Trustee in the amount of $218,900. For the reasons I have explained, that loan could only be paid if the Railway Street property was sold;
    2. (b)
       Second, she had superannuation in the amount of $755,000 (some $588,000 of which came to her by binding death benefit nomination by her husband) which paid her last year an income of about $40,000. This income stream covers her expenses with nothing to spare; and
    3. (c)
       Third, she had cash resources of her own of some $95,000.
32. [32]
    She does not own a home. Rather, she occupies the residential section of the Railway Street property rent free. Further, it seems uncontentious that the Trustee pays the costs of maintenance and upkeep of the property, including the residential part occupied by Mrs Tandy, and will continue to do so.
33. [33]
    She does not work and has a number of health issues which cause her significant pain. This is easily said, but it should be recognised that Mrs Tandy has real health problems apt to make an older person feel vulnerable.
34. [34]
    Given that Mrs Tandy cannot be paid her beneficiary loan unless the Railway Street property is sold, the identification of her financial position is closely linked to the position of the Trust. The position of the Trust is also relevant to certain matters raised by Mr Topp for the Applicant. It is to the Trust I now turn.

The Affairs of the Trust

35. [35]
    In considering the affairs of the Trust, I have not lost sight of the fact that this is an application for summary dismissal. However, Mr Topp very fairly cavilled only with specific matters. Where he did so, I will assume those matters in favour of his client. Some of the evidence was given orally at the hearing by Mrs Griffith. Her evidence dealt with the condition of the property and attempts to refinance it. Mr Topp did not object to this and he cross examined on that evidence and on some aspects of the Trust accounts. However, I am conscious that he was unprepared for this course.
36. [36]
    The only substantial asset of the Trust is the Railway Street property. It is 120 years old. It has some heritage controls but is not heritage listed. It needs a new roof. That will cost something of the order of $30,000, though a stop gap solution might be possible for much less.
37. [37]
    The lower story is rented to a Medical Centre which is a long standing, reliable client. It has recently resigned a three year lease with three three-year options. Those negotiations occurred after death but is was not suggested there was a real risk at the date of death that the Medical Centre might leave.
38. [38]
    The Medical Centre is the main source of income for the Trust. It pays about $65,000 per year. The Trust has also earned some other amounts totalling about $20,000 in the previous two years. It can be assumed for the purposes of this application that the income will remain at about $85,000.
39. [39]
    Expenses in the 2016 and 2017 years left a small loss and a small profit respectively. Mr Topp established that expenses might be about $10,000 less in the 2018 year, largely because of the fact that no directors’ fees will be claimed by the executors. It is notable that Mrs Griffith said such fees were not paid because of the tight cash position of the Trust. In my view it is relatively clear that at date of death the Trust had no substantial net income but had a sustainable financial position.
40. [40]
    However, there are risks for the Trust. The property is old and requires at least roof repairs. Also, the inquiries of the directors have revealed a reluctance in financiers to refinance the existing loan and real resistance to increasing the LVR beyond its current position at about 60%. I think it highly unlikely that that evidence is substantially incorrect and it was not suggested in cross examination that it was wrong.
41. [41]
    There is very limited capacity for the Trust to borrow more against the property unless the executors provide personal guarantees. They have no obligation to do so. Further, it is evident that a material increase in interest costs could put the Trust’s financial stability in jeopardy.
42. [42]
    In conclusion, the position of Trust is that:

    1. (a)
       Its current financial position is stable;
    2. (b)
       It has little capacity to pay any amount from profits; and
    3. (c)
       It has little capacity to borrow further against the Railway Property.
43. [43]
    If the property was sold for its estimate, and the loan and beneficiary loans were paid, there would be a net sum in Trust capital (assuming no tax was payable) of about $100,000.
44. [44]
    Finally, I assume for the purposes of this application that the Trustees would continue to operate the Trust largely for Mrs Tandy’s benefit and, if sold, pay the capital to Mrs Tandy or hold it for her benefit.

Implications for Mrs Tandy’s position: Date of death

45. [45]
    It is plain, even bearing in mind this is an application for summary dismissal, that Mrs Tandy cannot have both the benefit of payment of her beneficiary loan and continuation of her residence in the Railway Street property. The loan will only be available if the property is sold. (The same is true of her interest as residuary beneficiary.)
46. [46]
    Accordingly, Mrs Tandy’s true position at the date of death was that she had superannuation of $755,000, cash of $100,000 and a secure residence maintained and kept up by the Trust at no expense to her. The beneficiary loan secured her position somewhat against the sale of the property by the Trustees.
47. [47]
    The beneficiary loan in the estate served the same purpose. It could not be recovered without Mr Tandy losing her valuable accommodation arrangements, but it further secured her position if the Trustee sold the property.

The best case position as at Trial

48. [48]
    As I have said, it is my view that an application could be dismissed summarily if it could be established that the claim was untenable because:

    1. (a)
       The applicant’s case that it met the jurisdictional test was untenable; or
    2. (b)
       Even if the applicant’s case was tenable in that regard, at a trial there was no prospect of provision being made.
49. [49]
    There is no particular reason why Mrs Charlesworth’s position will differ between date of death and trial in any material manner. This is particularly so because I have made a trial date available in early August for this matter if it proceeds.
50. [50]
    The situation is different for Mrs Tandy. As explained above, the amount in the estate at the end of a trial cannot realistically be more than $130,000. This means that the estate must raise about $90,000 to pay estate costs. This amount can only be paid by Mrs Tandy using her savings or by the Trustee selling the Railway Street property.
51. [51]
    In the former case, Mrs Tandy will be left with no savings buffer for contingencies, but will retain the benefit of her housing provided by the Trust and her superannuation.
52. [52]
    In the latter case, Mrs Tandy will lose the benefit of her housing, but will have:

    1. (a)
       Her superannuation and her $95,000 in cash;
    2. (b)
       $218,900 paid by the Trust to discharge the beneficiary loan; and
    3. (c)
       $140,000 in Trust capital paid to her.
53. [53]
    In short, she will either have her super and secure long term accommodation; or $360,000, plus her $95,000 and her super, but no housing.

Executors’ contentions

54. [54]
    The executors contend that Mrs Charlesworth does not get past stage one. They rely on cases which emphasise the so-called primacy of the position of the long term widow as justifying that conclusion.
55. [55]
    The line of authority relied upon is well known. The case most frequently cited is Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70 where Powell J stated:

It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to meet any unforeseen contingencies.

56. [56]
    The executors also relied on Cropley v Cropley [2002] NSWSC 349 at [56], where Barrett J observed:

When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow’s claim should be afforded precedence in the sense that a demonstrated requirement for the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirements for the allocation of resources in aid of an adult child.

57. [57]
    So much can be accepted as general statements. However, the application must be determined on its particular facts. Those cases do not stand for a binding principle of applicable in all cases. In Bladwell v Davis [2004] NSWCA 170, the New South Wales Court of Appeal decisively rejected the suggestion of primacy of the widow as an inevitable constraint on the discretion conferred by the statute. Bryson JA, with whom Ipp JA and Stien AJA agreed, reviewed the cases referred to by the personal representatives along with a number of others to like effect and concluded:

18. [18]
    In my respectful view there is an inconsistency between an approach, in the context of competing claims, to the claims of widows as paramount, and the application to the facts and circumstance of each case of s. 7 and the approach established by Singer v Berghouse. Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982.

19. [19]
    In the application of the test in s 7, and of the exposition thereof in Singer v. Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v. Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits.

[Emphasis added]

58. [58]
    Ipp JA (with whom Stein AJA also agreed) added this rider to his concurrence in his Honour’s judgment:

2. [2]
   I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others.

59. [59]
    Bryson JA’s conclusion was cited with approval by Jones J in Laursen & Ors v Laursen [2009] QSC 30 at [17] and applied by McMeekin J (in the context of a hearing following settlement) in Kowalski v Public Trustee & Ors [2011] QSC 323 at [66]. I could not find authority in the Queensland Court of Appeal on the matter. In those circumstances, I follow the decision in Bladwell.
60. [60]
    Bearing in mind that authority, I reject the contention that the applicant’s case on the jurisdictional question is so untenable as to amount to an abuse of process of the Court. My short reasons are these.
61. [61]
    First, Mrs Tandy, though a long term widow who the Court properly should have concern for, had at the date of death considerable resources. She had a relatively large capital sum which paid a sufficient income to sustain her, a contingency sum worth $95,000 and the benefit of a residence in which she did not have to pay much of the maintenance and up-keep. It is strongly arguable that her needs were sufficiently addressed by those assets.
62. [62]
    Second, Mrs Charlesworth, while perhaps not having the most compelling case for provision, sufficiently demonstrates that her financial need and that the circumstances of her relationship with her father are such as to give rise to an arguable claim for provision.
63. [63]
    The next question is whether Mrs Charlesworth’s claim is untenable when considered from the prospect of the most favourable outcome (from Mrs Charlesworth’s position) at trial.
64. [64]
    In that regard, as I have outlined above, Mrs Tandy will either have her housing secure but no capital fund, or lose her housing but have an amount on account of housing of $360,000 plus retaining her capital fund. In addition she will have her superannuation.
65. [65]
    In that circumstance, the Court will be disposing of an amount in the estate of at the most, $130,000. Is there a tenable argument that Mrs Charlesworth could be awarded part of that sum, given Mrs Tandy’s position?
66. [66]
    Although the argument in favour of Mrs Charlesworth in that context might be considered to be weaker than her case on the jurisdictional issue, it is not so weak in my view as to amount to a case which is so untenable as to amount to abuse of process.
67. [67]
    For example, an award of $40,000 would probably require sale of the Railway Street property. If the property were sold, the consequence would be that Mrs Tandy ended up with $450,000 to acquire long term housing along with her capital fund and her superannuation. I could not properly conclude on a summary basis that the argument this was not sufficient in all the circumstances was untenable. I note in that regard there is no evidence as to what an equivalent residence in Mudgeeraba would cost.
68. [68]
    In all the circumstances, therefore, I am not persuaded that I can properly conclude that the originating application is so untenable as to comprise an abuse of the processes of the Court. I dismiss the application for summary dismissal.

Costs

69. [69]
    It is submitted by Mr Topp that if this application were dismissed, I ought to order costs in favour of his client and that the executors not have indemnity for those costs or their own for this application. He contends that should follow because the personal representatives did not bring a Beddoe application before bringing this application. I reject that submission. If the concern is with the costs of the application, it would be strange to conclude that the executors should bring another application for directions before bringing this application for dismissal. Very little costs would be saved. The bringing of a Beddoe application must, like all matters, be considered by a trustee sensibly in the context of the particular issue which arises. Not every step in every proceeding should be the subject of such an application, particularly a Family Provision Application. I reject the suggestion that a Beddoe application was called for in this case.
70. [70]
    The real question is whether the executors acted so unreasonably in bringing this application as to justify the Court depriving them of their indemnity. I do not think they did. The application was fairly arguable. Further, the application has had the salutary effect of having both parties consider with care their position in the litigation. The benefits of doing so might be reflected in the approach to resolution of the matter, litigiously or by settlement.
71. [71]
    Accordingly, I order that the executors pay Mrs Charlesworth’s costs of the application on an indemnity basis and further declare that the executors are entitled to indemnity for those costs and their own costs of this application from the estate.

Future disposition

72. [72]
    It is plain from the above analysis that this is a dispute over a small amount which is shrinking rapidly from legal costs. The assumptions as to likely costs in these reasons are very optimistic (as they should be given the nature of the application). However, the reality is that costs are likely to be higher unless the matter is dealt with expeditiously and efficiently.
73. [73]
    In that regard, I make the following directions:

    1. (a)
       Any order for mediation of the matter be vacated;
    2. (b)
       The applicant file any further material by 29 June 2018;
    3. (c)
       The respondents file any further material by Monday 16 July 2018;
    4. (d)
       The matter be set down for trial for one day on 10 August 2018.
74. [74]
    In vacating the mediation order, I take into account the fact that both parties are well represented and have had the opportunity to consider their respective positions in the course of this hearing. A mediation will involve considerable cost. That now seems an unnecessary cost in the context of this particular case. Settlement can of course occur by negotiation.
75. [75]
    In setting the matter down for hearing for 1 day, I note that counsel for the respondents considers that will be insufficient time to hear the matter. However, the case involves a fund which on any view will not exceed $130,000 and if costs are not managed, will involve much less. Given the hearing which has already occurred and the issues identified, I consider the parties ought to approach the matter so as to complete the trial in that time. If it proves impossible properly to do so in a way which involves a fair hearing to both parties, the matter can be heard further on another day.
76. [76]
    Finally, the problems which are sometimes created by applications brought in respect of small estates are well known. Summary dismissal is not an appropriate tool to deal with those problems. The issues which arise engage questions of policy. Whether to modify the operation of the statute in small estates, and if so how, seems to me to be a matter for Parliament to address, should it think it appropriate to do so.