Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Pitt v Fricke[2019] QDC 193

DISTRICT COURT OF QUEENSLAND

CITATION:

Pitt v Fricke [2019] QDC 193

PARTIES:

GEUA BUSINA PITT

(respondent)

v

KERRYN LEIGH FRICKE (AS EXECUTOR OF THE WILL OF PAUL DAVID WILLIAM FRICKE DECEASED)

(applicant)

FILE NO/S:

135/19

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Cairns

DELIVERED ON:

26 September 2019 ex tempore

DELIVERED AT:

Cairns

HEARING DATE:

25 September 2019

JUDGE:

Fantin DCJ

ORDERS:

  1. The executor’s application for summary judgment filed 2 September 2019 is dismissed.
  2. The applicant’s application for directions filed 2 September 2019 is allowed and orders are made in terms of the applicant’s draft order.
  3. The applicant’s costs of the executor’s application filed 2 September 2019 and of the applicant’s application filed 2 September 2019 be paid from the estate on an indemnity basis.
  4. The executor’s costs of the executor’s application filed 2 September 2019 and of the applicant’s application filed 2 September 2019 are reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where there is an application under s 41(1) of the Succession Act 1981 (Qld) for further provision from an estate – where the executor of the estate applies for summary dismissal of the application pursuant to r 658 Uniform Civil Procedure Rules 1999 (Qld) on the basis that the respondent has failed to show a prima facie case that she is a person entitled to apply under the Succession Act 1981 (Qld) – where the respondent must establish at trial that she was the de facto spouse of the deceased on his death – whether her claim should be summarily dismissed

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DIRECTIONS – where the respondent makes a cross – application for directions – where the respondent seeks disclosure of documents, service of material on beneficiaries and a dispute resolution process

Legislation

District Court Act 1976 (Qld) s 68

Succession Act 1981 (Qld) s 5AA, s 32DA, s 41

Uniform Civil Procedure Rules 1999 (Qld) r 658, r 700A

Cases

Atthow v McElhone [2010] QSC 177

Baker v Baker (No 2) [2019] QDC 140

Charlesworth v Griffiths & Anor [2018] QDC 115

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Higgins v Higgins [2005] 2 Qd R 502

PY v CY (2005) 34 Fam LR 245

S v B [2005] 1 Qd R 537
Singer v Berghouse (No 2) (1994) 181 CLR 201

Spencer v Burton [2016] 2 Qd R 215

COUNSEL:

CJ Eylander for the applicant

SOLICITORS:

Smithfield Law for the applicant

The Will and All (J Frizzo) for the respondent

HER HONOUR: Paul Fricke died in late 2018 in a motorcycle accident. His sister Kerryn Fricke is the executor of his estate (‘the executor’).

Geua Pitt has applied pursuant to section 41 of the Succession Act 1981 (Qld) (‘the Act’) for further provision from Mr Fricke’s estate on the basis that she was his de facto spouse. As she is the applicant in the family provision application, I will refer to her as ‘the applicant’, notwithstanding that she is the respondent to the application the subject of these reasons.

Ms Pitt also contends that her child, Jade Pitt (‘Jade’), who is a minor, is eligible to seek further provision from the estate of the deceased either on the basis that she is a stepchild of the deceased, being a child of the spouse of the deceased[1], and that she is a person who was being wholly or substantially maintained or supported by the deceased at the time of his death, being a person under the age of 18 years.[2] Jade has not yet made any application under the Act.

The applicant seeks orders for the further provision from the estate not knowing the terms of the will. The executor has refused to disclose the will to her. A copy of the will of the deceased dated 28 April 1999 was admitted to probate but that will was made before the applicant had met the deceased. The executor is the beneficiary of that will.

Nature of the application

The executor applies pursuant to rule 658 of the Uniform Civil Procedure Rules 1999 (Qld) to summarily dismiss the applicant’s claim on the basis that she has “no standing” to make such an application. The executor submits that the applicant has failed to show a prima facie case, that she is a person who is entitled to apply under the Act.

The executor has not provided a total net value for the estate. However, based on the affidavit evidence, it comprises a mortgaged house property at Kewarra Beach, which is currently subject to a contract for sale for $445,000, together with money in bank accounts, superannuation, death benefits and motor vehicles. The estate, while not large, is not so small that provision might not be made for the applicant and Jade at trial.

The issue is whether the applicant was the spouse of the deceased on his death, pursuant to section 5AA of the Act. It is clear that the applicant was not married to or in any other registered relationship with the deceased in accordance with section 5AA(1)(a) or (c) of the Act. The applicant argues that she was a spouse pursuant to section 5AA(1)(b) because she was the deceased’s de facto partner as defined in section 32DA of the Acts Interpretation Act 1954 (Qld).

In order to prove that she was a spouse for the purpose of the Act, the applicant must establish at trial that she and the deceased were de facto partners and that at the date of his death in late December 2018 and for the two years previously she and the deceased were “living together as a couple on a genuine domestic basis” within the meaning of section 32DA of the Acts Interpretation Act 1954 (Qld).

The onus at trial is on the applicant, as the party asserting the relationship existed, to prove on the balance of probabilities that it was so, in the period asserted. In relation to the question as to whether or not a de facto relationship existed in this case, it is not sufficient to show that at some point in their relationship they lived together on a genuine domestic basis for at least two years, but that in the two year period before the deceased’s death, they lived together on that basis.[3]

The applicant opposes the executor’s application for summary dismissal and makes a cross-application for directions, including for disclosure of documents, service of material on any other potential beneficiaries and a dispute resolution process.

The executor has indicated that if her application for summary judgment is unsuccessful, she consents to the draft orders proposed by the applicant, save for the proposed order as to costs.

Principles to be applied on an application for summary dismissal

It is convenient first to summarise the applicable principles on such an application.

Section 41 of the Act relevantly provides that if a person dies and, in terms of the will, adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application, order that such provision as the court thinks fit shall be made out of the estate of the deceased.

As the applicant is not seeking to be awarded provision from the estate with a value that exceeds $750,000 this court has jurisdiction to make an order pursuant to section 68 of the District Court Act 1976 (Qld).

The determination of family provision claims involves a two stage process as outlined in Singer v Berghouse (No 2).[4] It was said at 208 – 209 that “The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. 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 first stage has been described as the ‘jurisdictional question’.”

The first stage is to be determined at the date of death of the deceased.[5]

The second stage is applicable if it is determined that adequate provision was not made for the applicant and it involves a determination of the quantum of relief which should be ordered. The quantum is judged according to prevailing community standards of what is right and appropriate at the time of trial.[6]

The Court may intervene summarily in its inherent jurisdiction or pursuant to rule 658 of the Uniform Civil Procedure Rules 1999.[7] A family provision application may be summarily dismissed if the applicant’s material does not disclose a prima facie case in respect of the first stage enquiry. In such a context, prima facie case connotes that in the absence of further evidence, there is evidence upon which the tribunal of fact can, but not must, find for the party raising the prima facie case.[8]

In Charlesworth v Griffiths & Anor[9] it was said that a family provision application may be dismissed summarily if it could be established that the claim was untenable because:

  1. the applicant’s case that met the jurisdictional test was untenable; or
  2. even if the applicant’s case was tenable in that regard, at trial there was no prospect of provision being made.

Here the executor’s application is concerned only with the first of those arguments. That is whether or not the applicant’s case is untenable, or put another way, whether or not the applicant’s material discloses a prima facie case. The executor does not contend that, even if the applicant’s case was tenable, at trial there is no prospect of provision being made because of the small size of the estate.

A case must be clear indeed to justify the summary intervention of the court. 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 the proceedings should not be dismissed summarily.[10]

The power to order summary dismissal must be exercised with great care, or cautiously, and should never be exercised unless it is clear that there is no real question to be tried. I should not grant summary judgment for the executor unless it is clear that the application by the applicant cannot possibly succeed.

The discretion to give summary judgment does not arise merely because the court concludes that success is improbable or that the applicant’s case is weak.

If the court is satisfied that the applicant has some real prospect of succeeding at trial on her application, then the matter must go to trial.

In considering whether there is a need for a trial, a court must keep in mind why the interests of justice usually require the issues to be investigated at a trial.

On this application for summary dismissal, the executor has the burden of satisfying the court that the applicant’s claim should be dismissed.

The court will approach the application for summary dismissal on the basis that the affidavits of the applicant, Ms Pitt, will be accepted at trial, provided they are not inherently incredible. The court proceeds on the assumption in the applicant’s favour that any factual disputes on the affidavit evidence will be resolved in her favour at trial.

Principles applicable to whether the applicant was the deceased’s ‘de facto’

A determination at trial of whether or not the applicant was the deceased’s de facto partner will require an evaluation of a body of evidence. That assessment calls for value judgments, which means there can be reasonable differences of opinion. The making of the order at trial will, in the end, involve the exercise of a judicial discretion.

The question as to whether two people are living together as a couple on a genuine domestic basis is to be determined by circumstances which include, but are not limited, to those listed in section 32DA of the Acts Interpretation Act 1954 (Qld). Those circumstances include: the nature and extent of their common residence; the length of their relationship; whether or not a sexual relationship exists or existed; the degree of financial dependence or interdependence, and any arrangement for financial support; their ownership, use and acquisition of property; the degree of mutual commitment to a shared life, including the care and support of each other; the care and support of children; the performance of household tasks; and the reputation and public aspects of their relationship.

The criteria in section 32DA are all to be weighed up and analysed together with other factors or circumstances the judge considers relevant.

No one criterion is to be considered more significant than any other. No particular finding in relation to any of the circumstances is to be regarded as necessary in deciding whether two persons are living together as a couple on a genuine domestic basis.[11]

It is not necessary for all of the criteria to be present before a finding can be made that a couple is living together on a genuine domestic basis. So much is clear from the plain words of that section and has been confirmed by the Court of Appeal in Spencer v Burton.[12]

In order for a person to be a ‘de facto’ partner within the meaning of section 32DA of the Act, there is no necessity for there to be any intermingling of finances and property.[13] There are, of course, many de facto relationships where there is never any intermingling of finances and property.[14]

Discussion

Here, counsel for the executor, in his oral submissions, placed a great deal of weight on the fact that the applicant and the deceased were not living together in the same residence in the two years before his death. Counsel submitted that there needed to be a period when they were actually living together. That submission should be rejected. Cohabitation in a common residence is not necessary to establish a de facto relationship under section 32DA. It is, of course, a relevant consideration, but it is by no means determinative. It would be an error of law to attribute too much weight to that factor and to fail to take into account all of the relevant considerations.

As a matter of ordinary human experience, it is not uncommon for a person in a de facto relationship (or a marriage, for that matter) to move for a temporary period to another location for a specific purpose. For example, to take up employment or education opportunities or to support children. If the couple is in a regional area, the move may be to a capital city or interstate, where particular opportunities are available. The relocation, while temporary, may be lengthy. That does not, of itself, necessarily mean that the parties are no longer in a de facto relationship. In such circumstances, other indicia of the relationship, including but not limited to the matters in section 32DA(2), are likely to assume a greater significance and must be scrutinised.

This is not a final trial of the issues. It is sufficient to point to the key aspects of the applicant’s evidence relied upon in support of her family provision claim, bearing in mind that the applicant is entitled to have her evidence taken at its highest. Without making any evidentiary rulings for the purposes of this application, I observe that the affidavits filed by both parties contain inadmissible material, including hearsay.

The applicant was born in Papua New Guinea and was 45 years old at the deceased’s death. She met the deceased in 2010 in Cairns, where she was then living with her two children, Billy and Jade. At that time, as best I can make out from the affidavit evidence, the children were aged 11 and eight years. The applicant was studying a Bachelor of Social Science Tropical Health degree at James Cook University. The deceased worked as a fly-in fly-out aircraft engineer via his own aircraft engineering business. He was away for work for weeks at a time.

In December 2010, they started a relationship. In February 2011, the applicant and her children moved into the deceased’s house at Kewarra Beach, north of Cairns.

They remained living together there until April 2016, when the applicant moved from the Kewarra Beach house, which is located some distance from the city, to a house closer to the city. In December 2017, the applicant moved to Brisbane. She was living in Brisbane at the time of the deceased’s death in late December 2018.

On the evidence presently available, the applicant appears to have a strong case that she and the deceased were in a de facto relationship on a bona fide domestic basis from February 2011 until at least April 2016.

The issue is whether that relationship continued beyond 2016 until the date of death in late 2018. In particular, whether the applicant’s move to Brisbane signalled the end of the relationship or whether it was a physical separation made for a specific purpose but that the couple relationship continued, with the intention of resuming cohabitation when the purpose was fulfilled.

The circumstances in which those moves occurred are described by the applicant in her affidavit as follows.

Summary of applicant’s evidence of period from 2016 to deceased’s death

The applicant and her two children were heavily involved in sport. Both children were playing representative basketball and netball, training and playing in Cairns city during the week and on weekends. The applicant was doing a lot of driving to and from Kewarra Beach to school, work and sport. They went to every sporting carnival at other regional towns, including Gordonvale, Mareeba and Innisfail. Weekends were full of sport.

In around April 2016, the applicant had two incidents driving home at night that persuaded her to seek accommodation closer to the city in order to be closer to school, sport and work. One night, she fell asleep at the wheel of her car while driving home. At the same time, the deceased was working away a lot. The applicant felt that it made no sense for her to be going back to Kewarra Beach every night when the deceased was not there, and they were so busy in Cairns. She deposes that the deceased would sometimes be away for a month at a time, and they would be rushing home to an empty house.

The applicant says that, at first, the deceased did not understand and he was very upset when she decided she had to get a place in the city, closer to her work and their sport and cultural commitments. The applicant was also, at that time, heavily involved in the local association for people from Papua New Guinea, the PNG Wantok Association. She deposes that the deceased, in the end, supported her decision and that they decided that she should move into the city with the children for the purpose of being closer to work, school and sport. She says it did not matter that they were not at the Kewarra Beach house. It did not matter because they knew it was the way when they were working and that it was not permanent. She says they were still a couple.

The deceased assisted the applicant and the two children to move into rented accommodation at Mooroobool in the city, bringing food and staying with the applicant and the children and visiting them often. The deceased wanted them to come back to Kewarra, but both the applicant and deceased agreed it was better for them to stay in the city for travel purposes. The applicant said “We would still go to Kewarra because it was still our home. We would stay out there with [the deceased] when he was home.”[15]

The applicant would drive there, or the deceased would pick them up in his car. The applicant would check on the Kewarra Beach house while the deceased was away. She would collect the mail, take it in, read it for the deceased, and pay his bills with the credit card he left for her. She would do housework at Kewarra while the deceased was away.

The applicant deposes that they were still living together during that period but maintaining two homes. The deceased bought kitchen appliances for the applicant in the rental property. The deceased visited and called often, as well as visiting the applicant at work. At that time, the applicant put the deceased on her superannuation policy as one of her beneficiaries.

In May 2017, the deceased arranged for his parents to watch Jade play netball in a representative capacity in Brisbane. The deceased’s parents, who also lived in Brisbane, attended that event to watch Jade play. There is photographic evidence of that.

Later in 2017, the applicant’s son Billy found a mechanical apprenticeship in Brisbane. The deceased advised Billy that it was best that he took up the apprenticeship. In September 2017 Billy moved to Brisbane. He was very homesick there. For his 18th birthday, the deceased bought the applicant and Jade flights to Brisbane to surprise Billy. The deceased was away working at that time.

While the applicant and Jade were visiting Billy in Brisbane, he asked them to move down to be with him. He said he could not stay there alone because of his homesickness. The applicant deposes that the deceased agreed. He advised the applicant that it would be best for Billy for the applicant and Jade to move to Brisbane, and that it would be the best career, sporting and education move for both Billy and Jade. She further deposes that the deceased said that as his home was Kewarra, he would commute between Brisbane and Cairns, and that they would do the same so that they remained as a couple and as a family. When Billy was settled, the applicant and Jade would come back to Cairns.

A decision was made jointly for the applicant and Jade to temporarily move to Brisbane for the purposes of supporting Billy. In December 2017, they did that. The deceased helped them move to Brisbane. He organised and paid for a shipping container and helped pack it up and arranged for it to be sent. The deceased helped organise a house in Brisbane for the applicant to rent for six months. The deceased paid for the applicant’s rental bond and first two weeks of rent. There is documentary evidence of this.

The applicant wanted to return to Cairns to the Kewarra Beach house at some time in the future as she and the deceased had planned. The deceased paid for the applicant to travel with Jade to Brisbane. When they arrived in Brisbane, the deceased stayed with them for five days to help them settle into their new accommodation. He bought them a washing machine and a microwave. He bought other household equipment. The deceased paid for all of these things. He helped with advice and financial support to set up the home in Brisbane.

The deceased also helped find Jade a school in Brisbane. He took Jade to two different schools. The deceased and Jade decided on the school that she was to attend. The deceased paid for Jade’s schooling expenses at the Brisbane school through his aircraft maintenance business. The deceased also gave the applicant cash before he left Brisbane. The deceased and the applicant discussed the possibility of buying a home in Brisbane, but the deceased advised the applicant that her bankruptcy may take some time. In the end they decided not to buy a house in Brisbane because they planned to return to Cairns.

In January 2018, the applicant returned to Cairns and stayed with the deceased at the Kewarra Beach house for about one week.

In March 2018, the deceased stayed with the applicant in the Brisbane house for about a week. He spent time with her and the children at that time. He arranged for Jade to go to the dentist to have root canal treatment. He paid for Jade’s root canal treatment. There is documentary evidence of that.

In July 2018, the deceased drove from Cairns to Townsville to spend the day with Jade as she was participating in a sporting event in Townsville. He gave her $200 cash and a mobile telephone sim card.

In July 2018, the deceased sent the applicant a text message stating “If I am dead, at this stage Kewarra will belong to u guys.”[16]

In August 2018, the applicant and Jade came to Cairns for two nights to attend the funeral of one of Jade’s friends. The deceased left his car at the airport for them to use while they were there. The deceased paid for, and attended, the wake. There is a photograph of that.

In September 2018, the deceased’s parents visited the applicant in Brisbane. There is photographic evidence of that.

On 25 October 2018, the deceased paid for Jade to fly home to Cairns for the weekend. During that time, he helped her with her maths assignment. There is documentary evidence of that.

On 28 October 2018, the deceased exchanged text messages with Jade in which he said “I was serious when I said to the others that you aren’t my daughter but I wish you were.”[17]

The deceased took over payment of Jade’s mobile phone plan.

The applicant deposes that she and the deceased would often speak by telephone about the time coming when they would no longer be living separately because the kids would be independent and the applicant would be able to come back to Kewarra. She deposes that they decided that the best time for her to return to Kewarra Beach would be early 2019, as Billy’s second year apprenticeship would be due then. The deceased had decided that Jade would start year 11 at a school in Cairns and he had discussed that decision with Jade.

In December 2018, the deceased bought an expensive tool for Billy at the cost of nearly $800. There is documentary evidence of that.

In December 2018, the applicant spoke to the deceased, including about whether he would spend Christmas with them in Brisbane or whether she would be with him in Cairns, leaving the children to see their biological father. The applicant arranged two weeks of leave to spend with the deceased while the children were to be with their biological father. The last contact the applicant had with the deceased was on around 16 December 2018. She tried reaching him by phone after that, but could not reach him. She thought he may be on his way to surprise her in Brisbane. She became worried when he had not responded.

She eventually became aware that the deceased had died following a motorcycle accident on 20 December 2018.

On 28 December, the applicant flew to Cairns with the children. They attended the deceased’s funeral. Both children spoke at the deceased’s funeral. Their eulogies are in evidence.

Matters particularly relied upon to demonstrate a prima facie case

Summarising, the applicant’s solicitor submitted that the applicant clearly demonstrated a prima facie case. She relied particularly on the following matters.

First, that the applicant and deceased lived together at Kewarra Beach from 2011 to 2016, and although the applicant lived separately thereafter for the purpose of supporting their children, it was their intention to resume cohabitation at the beginning of 2019.

Second, the relationship was therefore one of approximately eight years. The deceased and the applicant both told other people that the applicant and the children would be returning to live at Kewarra Beach with the deceased. The deceased accepted the children calling him “Dad”. The deceased accepted being introduced as the applicant’s “Taubada”[18] (a reference to being the “big man” or husband).

Third, the applicant and the deceased were in a sexually exclusive relationship from the start of their de facto relationship until the deceased’s death.[19] They were seen to be openly affectionate towards each other in August 2018.[20]

Fourth, despite striving towards financial independence once she finished her degree, the applicant was financially dependent on the deceased throughout their relationship. He gave her access to his bank accounts, and to his bank cards and often gave her cash. He was generous with her and her children, giving them support of all kinds, including cash, generous gifts, payment of rent and bond, travel costs, payment of school fees and related expenses. During the relationship, they shared some living expenses, but the deceased supported the applicant financially.

Fifth, the applicant was reliant on the deceased for key decision making about education and financial matters, and future planning for themselves and the children. The deceased and the applicant discussed the applicant’s return to Cairns and the deceased told others that the applicant would be returning soon, as did the applicant.[21]

The deceased maintained the applicant’s garden of Papua New Guinea plants of cultural significance, such as mustard and betel, which she established at Kewarra Beach and from which the deceased sent her produce to Brisbane.[22] The applicant referred to Kewarra Beach as her home.

Sixth, the deceased treated the children as his own, and, even when not cohabiting, took a continuing parental interest in the children, including in their health and education. The children called him “Dad”. He was very actively involved in their lives. The deceased kept letters and cards written to him by the children.[23]

Seventh, the deceased and the applicant discussed doing proper wills in which the deceased’s will would include the applicant and her children.[24] As recently as July 2018, the deceased told the applicant in a text message “If I am dead, at this stage Kewarra will belong to u guys.”[25] The applicant named the deceased as a percentage superannuation death benefits nominee.[26]

I would add to that list the following. On the applicant’s evidence, she and the deceased often spoke of their future together when the children were no longer dependent.

Other evidence

There is also other independent evidence that supports the applicant’s claim that they were in a de facto relationship during the relevant period.

Their next door neighbours at Kewarra deposed that the applicant and the deceased were clearly a couple while they were living in that home together. They presented as a happy family and were a family unit. After the applicant moved to the house in Cairns, she was always coming back to Kewarra, including on weekends. The neighbours were aware that the applicant was moving to Brisbane to support Billy. Both the applicant and the deceased spoke of the applicant returning from Brisbane to Kewarra, including in late 2018. In summary, the neighbours’ evidence is consistent with the applicant’s.

There is also evidence from two close friends of the applicant which is consistent with the applicant’s evidence. Their evidence of how the applicant and the deceased presented in public and socially is clearly relevant.

In addition, there is some supportive documentary evidence to which I have already referred.

In addition, in the eulogy given by Billy at the deceased’s funeral, Billy said “The past 7 years, we have been blessed by Paul – he was a father figure to JJ and I and we loved and appreciated him.”[27] At the end, he says “We were waiting for him to spend our holidays together in Brisbane and then back at home (Kewarra Beach) Cairns, however; the Lord had other plans!!”[28]

Executor’s position

I turn now to mention some of the evidence filed by the executor. The executor’s own affidavit suggests that her view of the issues may have been coloured by a degree of ill-feeling towards the applicant, arising from their first meeting. For example, in the executor’s affidavit filed 2 September 2019, see [10] to [14] inclusive and [19].

The executor has also filed evidence, however, that supports her argument that the applicant and the deceased were not in a de facto relationship at that time. There are documents, including emails between the applicant and the deceased, that suggest that at times the applicant intended to leave the relationship before 2016, and that while in Brisbane in 2018, the applicant evinced an intention to no longer be in a relationship with the deceased.

With respect to the period after 2016, the executor relies, in particular, on text messages and emails exchanged between the applicant and the deceased. Just a few examples of those will suffice.

In December 2016, the applicant said to the deceased “I hope your folks know that we are no longer with you”, to which the deceased replied “Yes my parents are well aware that we r no longer together.”[29]

The proper construction of those text messages will be a matter for the trial. One construction is that they were no longer in a de facto relationship. Another construction may be, simply, that they were no longer physically cohabiting.

In January 2018, the applicant sent an email saying “I will do my best to make sure, that funds are refunded to you so that there is no further expense from you to my kids and I.”[30]

In July 2018, the applicant sent an email saying “We thank you for your kindness and that require no longer of the assistance but rather we shall determine whats best for ourselves.”[31]

In November 2018, the deceased asked if he could come to Brisbane for Billy’s birthday but the applicant responded, saying, amongst other things “don’t disrupt your work weekend we realised the mob we have is not your cup of tea and you won’t know anyone. However thanku for the thought to come best not too.”[32]

The executor has also produced screenshots of the deceased’s mobile phone, the last record of a call between them being on 9 December 2018 and the last message on 16 December 2018.

Of course, at trial, those messages must be considered in the context of all the messages and other communications between the applicant and the deceased, including other messages that exist that support the applicant’s case.

The executor relied upon the fact that they did not have joint bank accounts. However, there is evidence that there were good reasons to keep their finances separate, given the applicant’s earlier bankruptcy.

The executor points to the fact that there is no evidence of the deceased’s intention to benefit the applicant in his will or self-managed superannuation fund or other superannuation or insurance.[33] In 2014, the deceased purchased a will kit with the applicant and then apparently decided not to prepare a new will. The executor submits that this is compelling evidence that they were not living together on a genuine domestic basis.

The executor has also filed affidavits from other witnesses that support her position that the parties were no longer in a de facto relationship after the applicant moved to Brisbane. They include evidence from a house-sitter who moved into the deceased’s house in April 2018 to help look after it while the deceased was away. The house-sitter did not see the applicant visit the home while she was there.

There is evidence that the deceased’s continuing generosity to the applicant’s children was merely consistent with his conduct, generally, rather than an indicia of an ongoing couple relationship.

There is evidence from two male friends of the deceased who say that the deceased told them that he and the applicant had split up in 2016 or mid-2017. However, that evidence is very brief and it does not disclose how often those male friends actually saw or spoke to the deceased in the relevant period.

Conclusion

Those matters simply serve to highlight that, on the affidavit evidence, there are disputed issues of fact. Those disputed issues of fact militate against summary dismissal of the application.

If the matter proceeds to hearing there are clearly disputed issues of fact concerning the extent to which the applicant and the deceased had contact during 2018 and whether they remained in a de facto relationship or had, by then, separated.

The effect that evidence, in general, may have at a trial cannot be underestimated. This is a case where the question whether the applicant was the deceased’s de facto might well be determined by the evidence at trial. It will be necessary for the trial judge to carefully weigh up the testimony of each witness, as tested by cross-examination, and to consider the extrinsic evidence, including any documentary evidence.

The answer to the question, whether the applicant was the deceased’s de facto within the meaning of the legislation, is not so clear or straightforward as the executor suggests as to justify a summary order preventing the applicant from advancing her case at trial.

It cannot be said that the applicant’s claim is so devoid of merit or untenable as to not amount to a prima facie case. The interests of justice require that the disputed legal and factual issues be determined at a trial rather than summarily.

In the result, the executor’s application for summary judgment should be dismissed and directions should be made as proposed by the applicant to progress the proceeding to trial.

Costs

I turn now to say something briefly about the issue of costs.

I respectfully agree with the observations of McGill SC DCJ in Baker v Baker (No 2).[34] In particular, parties cannot engage in litigation under the section 41 of the Act on the assumption that everybody’s costs on an indemnity basis will be paid out of the estate, more or less regardless of the outcome. There is a particular obligation on parties to litigate efficiently and to minimise the costs of litigation. The function of rule 700A of the Uniform Civil Procedure Rules 1999 (Qld) is to permit the courts to penalise parties that litigate inefficiently.

Because family provision applications frequently reflect profound and deep-seated divisions within families, it is not entirely surprising that, sometimes, parties might prefer the estate to be consumed in legal costs, rather than be passed to those other members of the family or applicants with whom they disagree. However, there is an obligation on the legal practitioners involved to ensure that the litigation is conducted efficiently and the requirements of rule 700A are applied.

Bearing in mind that the bar for summary dismissal is set very high, in my view, the executor did not act reasonably in bringing the application for summary dismissal. It could not be said, on the evidence taken at its highest for the applicant, that the applicant’s claim was completely unmeritorious.

I decline to make an order for the executor’s costs in respect of the application for summary judgment. The executor’s costs of and incidental to the application for summary judgment will be reserved.

If the matter does not settle at mediation, it will be for the trial judge or another judge to determine whether the executor’s costs of the summary judgment application should be borne by her. If the applicant’s case for provision out of the estate succeeds, there would be good reason for the executor to bear some or all of her own costs of the summary judgment application, rather than have the value of the estate diminished by legal costs associated with an unmeritorious application for summary judgment.

Orders

The orders I make, therefore, are these:

  1. (1)
    The executor’s application for summary judgment filed 2 September 2019 is dismissed.
  2. (2)
    The applicant’s application for directions filed 2 September 2019 is allowed and orders are made in terms of the applicant’s draft order.
  3. (3)
    The applicant’s costs of the executor’s application filed 2 September 2019 and of the applicant’s application filed 2 September 2019 be paid from the estate on an indemnity basis.
  4. (4)
    The executor’s costs of the executor’s application filed 2 September 2019 and of the applicant’s application filed 2 September 2019 are reserved.

Footnotes

[1] sections 40, 40A.

[2] section 40 (definition of ‘dependant’).

[3] S v B [2005] 1 Qd R 537, 540 [2], 541 [9], 546 [33], 549 [50].

[4] (1994) 181 CLR 201.

[5] Singer v Berghouse (No 2) (1994) 181 CLR 201, 209-210.

[6] Singer v Berghouse (No 2) (1994) 181 CLR 201, 209-210.

[7] Higgins v Higgins [2005] Qd R 502, 505-506 [15].

[8] Atthow v McElhone [2010] QSC 177 [19].

[9] [2018] QDC 115 [48].

[10] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129 referring to Dey v Victorian Railways Commissioners (1949) 78 CLR 62.

[11] Acts Interpretation Act 1954 (Qld) s 32DA(3).

[12] [2016] 2 Qd R 215.

[13] Spencer v Burton [2016] 2 Qd R 215, 243 [120]-[121] per Ann Lyons J (Holmes and Gotterson JJA concurring).

[14] PY v CY (2005) 34 Fam LR 245; [2005] QCA 247.

[15] Affidavit of GB Pitt filed 5 August 2019 [68].

[16] Ibid [96].

[17] Ibid [101].

[18] Affidavit of DN Austrai-Ombiga filed 16 September 2019 [17].

[19] Affidavit of GB Pitt filed 5 August 2019 [18].

[20] Affidavit of M Emmerick filed 11 September 2019 [8].

[21] Affidavit of W Fry filed 11 September 2019 [17], [19], [26]; Affidavit of DN Austrai-Ombiga filed 16 September 2019 [13].

[22] Affidavit of GB Pitt filed 5 August 2019 [29], [38]; Affidavit of P Emmerick filed 11 September 2019 [11].

[23] Affidavit of GB Pitt filed 5 August 2019 [36].

[24] Ibid [34].

[25] Ibid [96].

[26] Ibid [72].

[27] Ibid Exhibit GBP-16.

[28] Ibid.

[29] Affidavit of KL Fricke filed 2 September 2019 Exhibit KLF10.

[30] Affidavit of JD Frizzo filed 2 September 2019 Exhibit KLF14.

[31] Affidavit of KL Fricke filed 2 September 2019 Exhibit KLF13.

[32] Ibid Exhibit KLF20.

[33] Ibid [59]-[60].

[34] [2019] QDC 140 [4]-[6].

Close

Editorial Notes

  • Published Case Name:

    Pitt v Fricke

  • Shortened Case Name:

    Pitt v Fricke

  • MNC:

    [2019] QDC 193

  • Court:

    QDC

  • Judge(s):

    Fantin DCJ

  • Date:

    26 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.