Ucchino v Evans[2024] QDC 181

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   By originating application filed 11 September 2023, the first to fourth applicants sought further provision from the estate of their aunt, Julie Price, pursuant to s 41(1) Succession Act 1981 (Qld) (the Act).  Their aunt died in December 2022.  Tracy Ucchino brought these proceedings as litigation guardian on behalf of all four applicants.  Ms Ucchino is the sister of the deceased, Julie Price.

2. [2]
   The first applicant was a child at the date of death but an adult at the date of filing of the originating application. Ms Ucchino has sought leave to discontinue the proceedings on behalf of the adult child, but that adult child was a child in the family leading up to the date of death, and I will not distinguish between that child, Zoe, and the other applicants for this analysis, except where I make specific comments about the first applicant.

3. [3]
   The basis of the standing contended for by the applicants is as dependants. Section 41(1) of the Act provides that:

If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy 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 by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

4. [4]
   “Dependant” is defined in s 40 of the Act in this way:

dependant means, in relation to a deceased person, any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death being—

1. a parent of that deceased person; or

2. the parent of a surviving child under the age of 18 years of that deceased person; or

3. a person under the age of 18 years.

5. [5]
   The applicants assert they are dependants under subsection (c) of the definition, which means they allege, relevantly here, that each applicant is a person who was being “wholly or substantially maintained or supported” by their aunt at the time of her death. (Age and lack of valuable consideration are not in dispute.)

6. [6]
   The respondent executor has sought, by application, the originating application be dismissed on a summary basis. The court has power to do so, both in its inherent jurisdiction to prevent abuse of its own processes, and under r 658 and possibly r 16 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  Whichever source of power is deployed, it is at heart a common test.  The proceedings must be so hopeless as to amount to an abuse of process.  It is a very high bar.  It is a serious matter to deprive a party of a trial, but not an insurmountable bar.

7. [7]
   The executor submits that, even accepting the applicants’ evidence at its highest, the applicants have no prospect of establishing that they were dependants of their aunt at the date of their aunt’s death.

8. [8]
   The applicants submit the evidence is capable of supporting the conclusion that they were dependants of their aunt at the date of death. The point of distinction between the parties, importantly for this summary disposal application, is a question of law:

1. The executor submits that, adopting the current authorities on the construction of the phrase “substantially maintained or supported”, the applicants must lose.  The current construction construes “substantially” as meaning “in the main” or “essentially”.  On that construction, as will be seen, the applicants’ case is, in my view, hopeless.  Not only is that evident from the applicants’ evidence, but it is impliedly conceded by the applicants’ outline.

2. The applicants submits that the proper construction of the phrase “substantially maintained or supported” is that support or maintenance will be substantial if it is more than insubstantial, ephemeral, immaterial or intangible.^[1]  Their submission is that on this construction, their case that support from their aunt is substantial for the purposes of the statute is not hopeless.

3. Alternatively, the applicants submit that an assessment of whether an applicant is “substantially maintained or supported” can be established having regard to the qualitative effect of maintenance and support, not its quantitative amount.  This alternative argument is that, so long as the maintenance or support has a qualitatively significant effect on the living standard of an applicant, it is capable of being substantial within the meaning of the phrase “substantially maintained or supported”.  In this particular case, the applicants submit that the evidence taken at its highest shows that the contributions from the aunt had the effect of assisting in keeping the family out of poverty.^[2]

9. [9]
   For the reasons which follow, I do not accept that either of the applicants’ submissions as to construction are correct as a matter of law, and for that reason I dismiss the originating application.

The procedural history of the matter 

10. [10]
    Given the nature of this application, I take the applicants’ evidence at its highest and adopt all reasonable inferences that flow from it favourable to the applicants. I am acutely conscious that this is a summary dismissal application, and in that sense the following points should be noted from the procedural history of the matter.

11. [11]
    The only affidavit filed by Ms Ucchino is her affidavit from September 2023. That affidavit was, to be generous, very thin on evidence which could sustain the conclusion that the four applicants were substantially maintained or supported by their aunt, whatever construction was adopted. (The relevant paragraphs were paragraphs 14 to 16 of that affidavit.)

12. [12]
    The executor brought this application. No further evidence was filed in support of the application on its first return date before me on 22 July 2024. Rather, on that occasion the applicants consented to providing further disclosure which had been sought as an alternative in the interlocutory application and were granted an opportunity to file further material. The application was adjourned to today. A further affidavit was then filed by Mr Hamilton for the applicants.

13. [13]
    The result is that the applicants have had two opportunities to put on material that went to the issue of standing raised by the executor and, on the last occasion, have had the benefit of the executor’s detailed submissions from Mr Fraser KC, which were provided on the first return date.

14. [14]
    There was no application for a further adjournment or to put further material before me. Indeed, the submission was made by Mr Hamilton that the matter is close to ready for trial. That gives me a little more confidence than one otherwise would have that the evidence at its highest is substantially the evidence at its highest which could, or would, be led at trial.

15. [15]
    Turning to the facts, the applicants’ case on the financial position of the applicants is articulated only from the perspective of the family as a whole, not by reference to the individual applicants. Further, the evidence does not directly address the position of the applicants at the date of death. However, given the generous approach I should take to the evidence in a summary dismissal application, I assume that the position as at date of death was more or less the same as the position before and after, as disclosed in the material. This seems a sensible approach to take in any event, given that over the relevant period the family operated as a single unit in a single household. The position in respect of individual applicants, as opposed to applicants as a group, is not a decisive one, and I deal with that later.

16. [16]
    I am content to adopt the applicants’ own summary of the family’s financial position for the purposes of this application (footnotes omitted):^[3]

1. Since 2017, [Tracey Ucchino] has been employed by Goodstart Early Learning in a part time capacity working as a child care assistant educator 37.5 hours per week.  When she started this job, her wage rate was $23.39 per hour.

2. For the financial year ended 30 June 2021, she earned a taxable income of $52,045. This equated to about $45,962.71 nett after tax – about $883.89 nett per week.

3. For the financial year ended 30 June 2023, she earned a taxable income of $53,855.  This equated to about $46,077.31 nett after tax – about $886.10 nett per week.

4. Her bank statements show the regular weekly payments from her employer.  From 1 July 2023 to 30 June 2024, she received on average about $950 per week from her employer.

17. [17]
    After that the evidence of bank account statements showed no material net balances in recent times. The family’s monthly expenses were articulated in this way:^[4]

(e) …

4. The Direct Debit to Sper is $50 per fortnight;

5. The Direct Debit to Gedda is $160 per week;

6. Her other expenses are rent and groceries and dailing living expenses, summarised as follows for the one year period from 1 July 2023 to 30 June 2024;

1 July 2023 to 31 December 2023

1 January 2024 to 30 June 2024

6. For both of the above six month periods, the total expenses exceeded the total income.

7. She still owes Gedda $11,909.77, plus interest;

8. She still owes Sper $1,275.29;

1. The rent under her rental agreement for the house she lives in with the Applicants is $970 per week.  For a six month period this comes to $25,220.  Yet according to her bank statements she has paid about $5,000 for each of the last two six month periods (1 July 2023 to 31 December 2023 and 1 January 2025 to 30 June 2024).  She is behind in her rent, as she attests in paragraph 38 of her Affidavit filed 8 November 2023;

10. Her income and expenditure are meagre, and consistent with the budget set out in paragraph 48 of her Affidavit filed 8 November 2023;

11. She is currently behind in payments of rent and utilities.

18. [18]
    The applicants’ submissions then develop the argument that the family is on the level of the poverty line or thereabouts, and that their aunt’s contributions are therefore material. The poverty line arguments are developed as follows:^[5]

6. Attached to this outline is the report titled “Poverty in Australia 2022: A snapshot” published by the Australian Council of Social Service and available online at povertyandinequality.acoss.org.au.

7. The report states that people are in poverty when their household’s disposable income falls below a level considered adequate to achieve an acceptable standard of living.

8. The poverty line in 2019-2020 for a single parent with two children, based on 50 to 60% of median income, assessed by the Australian Council of Social Service, was a disposable income of $783 to $939 nett per week.  For an extra child, the poverty line would be an extra $147 to $176 – that is a disposable income of $930 to $1,115 nett per week.  This would have gone up since 2020.

9. Tracey’s income from working as a child car (sic) worker of about $886.10 nett per week, plus the carer’s pension of about $64.26 per week, comes to about $950.36 nett per week, which is on or below the poverty line.

10. When taking the Sper and Gedda debts into account to derive Tracy’s disposable income (the poverty line is based on disposable income), it is $765 nett per week, well below the poverty line.

11. She would have been on or below the poverty line for the entire length of time from 2006 to November 2022 that the Deceased gave her monthly cash payments of $800 to $1,000 per month.  Her circumstances have not improved and she would have continued to remain on or below the poverty line to the current time, and can be expected to continue to remain on or below the poverty line for many years to come.

19. [19]
    They then go on to advance their first submission in this way:^[6]

12. The monthly cash payments of $800 to $1,000 per month would have assisted in a very significant and substantial way, to keep Tracy and her children above (or at least not falling further below) the poverty line.

13. It is submitted that any financial contribution which has the effect of keeping children above the poverty line must be considered essential to the well-being of the children and in that sense must be “substantial”.

20. [20]
    As to the financial contributions of their aunt, they submit:^[7]

14. The financial contributions by the Deceased were not limited to the cash payments of $800 to $1,000 per month, from 2006 up to November 2022 (she passed on 12 December 2022).

15. The Deceased’s financial contributions also included:

1. Allowing Tracy and her children to live with her rent free in 2006 to 2007, after Tracy lost her house and separated from her husband;

2. Paying the deposit when Tracy and her children moved out into rental accommodation;

3. Supporting the other children when Zara was born and immediately hospitalised and put on life support for three months;

4. Paying $8,000 for Zalvatore to go to Spain to train and trial for football clubs in Spain.

21. [21]
    There is another further example of maintenance and support of the applicants outside the support of the mother and aunt alleged, which is contentious as to how it should be characterised, (not as to whether it has happened), and that is in respect of school fees. It is not contentious in the material that the children’s father, who does not live with the family, supports the children by way of paying their school fees for all of them to attend a private school in the west of Brisbane. It is uncontentious that that amounts to some $50,000 per year in fees in total.

22. [22]
    The applicants submit that if the father did not pay these school fees the children would attend a State school, and therefore that that contribution should be excluded from considering the maintenance and support the children receive apart from their aunt. The executor cavils not with the facts, but with that approach to the facts, as a matter of law, and I will come back to that.

23. [23]
    The executor must accept the primary facts alleged by the applicants on this application. The executor does, however, cavil with some factual issues.

1. First, there is a point by which the applicants say they are behind in their rent.  The executor points out that the father is a guarantor on the rental agreement.  The executor submits one should infer that the father would take steps to ensure that the rent was paid if eviction was likely.   While that might be a reasonable inference, I am not going to draw that inference on a summary application of this kind.

2. Second, as to the one-off contributions summarised in paragraph 15 of the submissions for the applicants, the executor submits that those amounts are irrelevant, largely because:

1. The first three are payments that were made many, many years ago.  A proposition I accept makes them of little significance to the issue assessed at the date of death;

2. As to the fourth, the submission is that it is a relatively small sum.  I am not persuaded that $8000 to go and train in Spain and trial for football clubs is a small sum.  What it does reflect, however, is a one-off payment, really a grace and favour payment, to the benefit of Zalvatore alone.  I do not think that payment is significant in this case except to the extent it reflects the willingness of the aunt to supplement the resources available to the family for occasional specific purposes at her discretion.

3. Third, as to the school fees, the executor submits that they cannot be ignored in assessing the issue of standing.  I agree.  The applicants contend that, without the school fees, the children would go to a State High School rather than the private school the children attend.  But the fact is that the father maintains and supports the children in their education, one of the core aspects of maintenance and support of any child.  It simply cannot be ignored.  

Construction of “substantially maintained or supported”

24. [24]
    The proper construction of that phrase in the Act was considered by Justice Mullins, as her Honour then was, in Lohse v Lewis [2004] 2 Qd R 648 at [86] to [94].  Her Honour’s conclusion, which appears at [95] of her Honour’s reasons, is as follows:

The phrase “wholly or substantially maintained or supported (otherwise than for valuable consideration) by that deceased person at the time of the person’s death” has to be construed in the context of prescribing the condition precedent that the applicant, as a de facto spouse, must establish in order to obtain relief as a dependant at the date of the deceased’s death. It would make a nonsense of the requirement, if the word “substantially” did not take its meaning from the context given by the use of the word “wholly”. The word “wholly” is unambiguous. The word “substantially” indicates something less than “wholly”, but it connotes something which is still significant. It could not possibly mean in that context “not merely nominal, ephemeral or minimal”. It could in this context be appropriately paraphrased by the words “in the main” or “as to the greater part”: cf Department of Social Security v Wetter (1993) 40 FCR 22, 30. In determining whether the maintenance or support at the date of death is substantial, consistent with the approach in Re Cobb [1989] 1 Qd R 522, the future arrangements that had been planned between the parties and for which provision was made must also be taken into account.

[underlining added]

25. [25]
    Her Honour’s conclusion was adopted by Judge Long SC of this Court in McElligott v McElligott [2014] QDC 178 at [55], where his Honour said (footnotes in original):

Notwithstanding that for s 40 of the Succession Act 1981, substantial rather than whole maintenance or support may suffice, as a matter of the application of this requirement in the context of prevailing community standards and in the context of the provision being a condition precedent to the application of a test which was described by Gleeson CJ in Vigolo v Bostin,^[8] as requiring a value judgment based on considerations of moral claims and moral duty, a requirement of directness of such dependency should be recognized. The indirectness of any maintenance or support, such as is evident here and implicit in an arrangement where the children remained in the care of their ordinary primary caregiver, their mother and who otherwise herself provided substantially for their maintenance or support, means that it should be concluded that any such maintenance or support, as was provided by the deceased for the care of the children, was provided as much to and for the benefit of their mother and is therefore most unlikely to satisfy the requirements of s 40. It can also be noted that such a conclusion is consistent with the approach taken in Lohse v Lewis & Anor^[9], in that substantial maintenance or support, requires something that may be described as being “in the main” or “as to the greater part.

26. [26]
    This issue was also considered at some length by Judge Burnett in Treadwell v Treadwell [2021] QDC 44 at [23] to [40].  Although his Honour referred to authority which gives “substantially” a construction similar to the construction advanced by the applicant,^[10] it seems to me that his Honour was referring to those authorities simply for the purpose of identifying those cases in his review of authority.  In fact, it appears to me that his Honour applied the Queensland authorities.  So much I think is clear from what his Honour said at [40] to [41] (footnotes omitted):

It was upon that basis that Long SC DCJ determined that the claim before him was most unlikely to succeed, if not doomed to fail. Here in my view a similar result follows upon a consideration of the present facts when considered at their highest for the claimants.

Here, as a matter of fact, the claimants on any version could not be said to have been substantially maintained or supported at the time of the deceased’s death, particularly when consideration is given to the evidence directed to the issue of substantial maintenance. For many years prior to and up to the time of the deceased’s death Michael had been residing in a residence which comprised a granny flat. The flat was part of the deceased’s house. The flat and main house constituted two separate and independent living spaces. The claimants had only ever visited the granny flat in which their father Michael resided on the limited occasions as I have earlier identified.

27. [27]
    Counsel for the applicants sought to distinguish Lohse and McElligott on the facts.  They were factually different cases, but that is not the issue.  Differing facts do not affect the fundamental question of the proper construction of the phrase “substantially maintained or supported” in the statute.  In my view, I ought to follow Justice Mullins and Judge Long SC.  Even if I was persuaded to the different construction placed on the phrase by counsel for the applicants, there is a strong argument that that would be no more than a preference for a different constructional choice between two proper constructions, and the authorities suggest in those circumstances I should abide by the construction adopted by Justice Mullins, in turn adopted by two judges of this Court.^[11]

28. [28]
    However, I do not have to fall back on judicial comity principles. In my view, the construction given by Justice Mullins at [95] of Lohse is correct, and I respectfully agree with her Honour’s construction.  Her Honour speaks of the word “substantially” taking its meaning from the context given by the use of the word “wholly”, and considers “substantially” means something less than “wholly” but still significant.  She paraphrased the words as “in the main” or “as to the greater part”.  Not only does that specific point of context, I think, support her Honour’s approach, but so does a wider view.

29. [29]
    Section 41(1) gives the jurisdiction to the Court where adequate provision is not made from an estate for proper maintenance and support of the deceased person’s dependant. The specific phrase we are looking at appears in a definition of the word “dependant”. It seems to me contrary to the ordinary meaning of the word “dependant” that someone could be characterised as a dependant merely because they received some support from a deceased person that could be characterised was as merely not insignificant.

30. [30]
    The statute extends standing to persons who are wholly dependent on a deceased and to persons largely, mostly or primarily dependent on the deceased.  The purpose of that extension is in my view to avoid the statute being robbed of effect merely because a respondent can point to some relatively minor source of support from some other source and so take a person who would otherwise be within the scope of the statute, outside the scope of the statute.

31. [31]
    For that additional reason, I reject the constructions contended for by the applicants.

Application to this case

32. [32]
    The reason this is a proper case for summary dismissal is because, as I sought to articulate at the start of my reasons, the applicants’ submission implicitly recognises that if the executor’s construction is correct, they have no arguable case (because of the way the submission has developed and the particular paragraphs I identified). However, I am in any event satisfied that to allow it to continue would be an abuse of process for at least the following reasons.

33. [33]
    First, the applicants all live with their mother.  Neither at the date of death, nor at any time close to that were they living with their aunt. 

34. [34]
    Second, it is crystal clear from the applicants’ material that the primary source of support for the family is the mother’s salary of about $50,000 a year.  Her income covers most of the expenses of the family on a monthly basis.

35. [35]
    Third, the applicants are supported by their father by his provision of school fees, in an amount similar to the mother’s entire salary.  

36. [36]
    Fourth, the contributions by the aunt were undoubtedly welcome.  They undoubtedly helped a lot.  But in no way could $800 to $1,000 per month, in the context of the three points I have just made, meet the requirements of all the applicants being substantially maintained or supported by their aunt in the way that Justice Mullins, Judge Long SC, Judge Burnett and, finally, I have construed it.

37. [37]
    Fifth, one matter that Justice Mullins raised which is of real interest in this case relates to what future arrangements existed between the parties.  It is not everything, but it is also not nothing.  In that regard it is evident from the will that no arrangements were made for future support after the aunt’s death.  The inference from that, at a minimum, is that she saw her contributions as grace and favour contributions at her discretion, a circumstance I think inconsistent with concluding that the applicants were her dependants.

38. [38]
    Sixth, I agree with the executor’s submissions that the one-off payments do not make any difference to the conclusion.  Most of them are very dated and, as I said, the one payment, which might have been more recent – I assume it was recent, given the age of the children – was a discretionary one-off payment to support just one of the children.  

39. [39]
    Seventh, this case involves the mother, one adult child, and three minors.  The support of $800 to $1,000 a month was used to support the whole family:  the mother, the adult child, and the other children.  It is not a major point, but it does demonstrate that if one were to consider the amount of the support for the individual applicants, be it four or three, it was very modest.  Further, the support was provided through the mother to support the whole family (including the mother).  This is indirect support, which Judge Long considered was not adequate to engage the statutory definition of dependant.

40. [40]
    Counsel for the respondent, the executor, advanced a further argument that, if one took the mother’s income, the mother’s role, and the value of the father’s contribution, that amounts to about $100,000 a year, and $12,000 a month is such a small amount as to be insubstantial. I do not agree with that submission. If that was the test – partly for the reasons advanced by counsel for the applicants about what a difference it made and partly because, if it came to it, to decide whether $12,000 out of $100,000 is substantial or insubstantial – I would not have thought that would have justified summary dismissal.

41. [41]
    However, that was in the nature of a submission made in case I rejected the executor’s principal argument on construction. The primary submission is that the proper construction is that which has been adopted in the Supreme Court and this Court, and on that construction the case is hopeless. Indeed, once that conclusion is reached it is not only in the public interest, but it is also in the interests of the applicants to bring an end to this proceeding before more costs are incurred, which, given their straitened finances, it would be very difficult for them to pay.

42. [42]
    In any event, those kinds of matters have nothing to do with the substantive decision. The substantive decision is based on the fact that this is a question of proper construction. Once that construction is determined, the case is shown to be without foundation and should be dismissed forthwith.

43. [43]
    I therefore dismiss the originating application.

Costs

44. [44]
    The respondent executor succeeded in having the applicants’ originating application struck out or dismissed on General Steel^[12] grounds as an abuse of process because the evidence was simply not capable of giving them standing in accordance with established authority.

45. [45]
    The basis of the submissions of the applicants, as I explained in my reasons, turned on the implicit concession of that proposition and sought to develop a quite different test. In those circumstances an applicant is just taking the chance that they will persuade a Court to a different view in circumstances where I think the established construction was compelling.

46. [46]
    The conduct of the applicants in the course of this litigation, as summarised by counsel for the respondent in oral submissions on costs, demonstrates that, far from anything being done by the executor which involved inefficient or unreasonable conduct of the litigation, the executor has been consistently on the front foot in giving the applicants every opportunity to address problems in their case, giving the applicants every opportunity to understand the critique by the executor, even down to trying to supplement the failings of the applicants’ solicitors in taking instructions from the applicant who was no longer a minor child. Further the executor made various offers on a Calderbank basis, including one as recent as July this year, for a payment of $10,000.  In my view, the authorities compel me, exercising this discretion judicially, to order the following.

47. [47]
    I order that Tracy Michelle Ucchino pay the respondent’s costs of the application and the originating application on a standard basis.