Comninos v Buckley; The Estate of Comninos

HIS HONOUR: On 28 June 2019, I listed, for hearing, a notice of motion filed on 22 May 2019, by Denise Buckley, who is the appropriate Defendant, seeking, relevantly, an order that the proceedings brought by the Plaintiff for a family provision order be wholly dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and an order that the Plaintiff pay the Defendant’s costs of the proceedings. These reasons relate to that notice of motion.

The Plaintiff, Pascall Comninos, commenced the proceedings by Summons filed on 28 November 2018. He sought an order for provision out of the estate and notional estate of his brother, Stavrianos George Comninos (“the deceased”), pursuant to Ch 3 of the Succession Act 2006 (NSW) (“the Act”) and other consequential relief. He also sought an order “designating the Respondent as the Executor of the Estate of the Deceased”; and an order that the Defendant be restrained from dealing with the estate of the deceased pending the determination of the family provision application. He did not name a Defendant in the Summons.

(I note, though it is not of huge significance given the conclusion to which I have come, that the Summons also did not specify any legislative sources for the consequential orders that were sought and did not seek an order for the Court to extend the time for the making of the application. The Summons left blank spaces, in numerous places, presumably where the relevant sections of the Act were meant to have been inserted.)

The Summons appears to not have been filed in the Court’s registry (and, hence, the proceedings were not commenced) within the time prescribed by the Act, namely “not later than 12 months after the date of the death of the deceased person”: s 58 of the Act.

(It also appears from a document available on the Court’s computerised record system, that the Plaintiff had made an application to postpone the payment of the filing fee of the Summons. Although it is not clear when that application was made, and, therefore, when he sought to file the Summons in the Court registry, a letter dated 29 November 2018, from the Court to the Plaintiff, states that “[T]he Application has been considered and has been approved” and that “[P]ayment of the fee is postponed until the proceeding has been concluded”. I should also note that the Summons is dated 16 November 2018 and the Court file stamp is 28 November 2018.)

In support of his Summons, the Plaintiff filed an affidavit affirmed on 16 November 2018. He stated in this affidavit, amongst other things, that:

In the affidavit, the Plaintiff included the following passages:

Whilst on the front page of the Plaintiff’s affidavit, it is written that the Plaintiff is “SELF – REPRESENTED”, it seems likely that he had some assistance in the preparation of that affidavit (although, perhaps, from someone other than a lawyer).

On 23 May 2019, an affidavit of the Defendant in accordance with Paragraph 9.1 of Practice Note SC Eq 7 (which Practice Note applies to claims for a family provision order) was filed. In that affidavit, the Defendant averred:

Importantly, the Defendant disclosed that pursuant to orders made by Slattery J on 23 July 2018, and in lieu of her entitlement under the deceased’s Will, an amount of $500,000 had, on 30 July 2018, been distributed to the deceased’s partner; that on 22 January 2019, the pecuniary legacy of $100,000 had been distributed to each of the five grandchildren of the deceased; that in late January 2019, and early February 2019, interim distributions of $675,000 had been made to the Defendant and to each of the three other children of the deceased; and that the remaining undistributed estate was $989,000.

The Defendant also disclosed that there was a taxation liability of the estate (estimated to be $322,000), costs for completing the administration of the estate ($40,000) and the costs of these proceedings, until the conclusion of the hearing of this notice of motion ($20,000) left to be paid out of the estate.

Assuming the liabilities yet to be paid prove to be accurately estimated, the remaining estate had a value of $607,000. (There was a suggestion made from the Bar table that the current net value of the estate is less than that but I have used the estimates provided in the affidavit evidence: Tcpt, 18 July 2019, p 13(22-27).

The Defendant did not disclose, in the affidavit, when it was that she was served with the Plaintiff’s Summons. However, at the hearing of the notice of motion, the Court was informed, without objection, that it had not been until 30 April 2019: Tcpt, 18 July 2019, p 9(11).

Thus, it seems not to be in dispute that the Defendant had not been served by 8 February 2019, which is a few days after she made the last of the distributions out of the estate, and almost 2 months after the expiration of the time within which the proceedings should have been commenced.

I have set out the formal evidence of the Defendant, as there is unlikely to be any dispute about the factual matters, about which the Plaintiff would have no knowledge. In any event, I am satisfied that the affidavit of the Defendant sets out, in some detail, the steps taken in the administration of the deceased’s estate.

It is convenient to next set out the critical procedural steps that occurred in the case.

The proceedings were listed before me, in the Family Provision List, for the first time, on 8 February 2019, on which occasion, the Plaintiff appeared in person. The matter was adjourned at his request, until 8 March 2019, as the Court was informed that he wished to obtain legal advice (which was encouraged). Unsurprisingly, on the first adjourned date, there was no appearance by the Defendant.

On 8 March 2019, there was no appearance by the Plaintiff. However, late in the afternoon of 7 March 2019, an email was sent to the Registry of the Court, from Thea Comninos (a daughter of the Plaintiff), in the following terms:

In the circumstances, and despite the informality of the email correspondence, and the lack of medical evidence supporting the assertion that the Plaintiff was unwell, the proceedings were adjourned, again, this time, until 22 March 2019. My Associate, at my request, sent an email late on 8 March 2019, in the following terms:

On the adjourned date, again, there was no appearance by either party. However, an email was sent to the Court late in the afternoon of 21 March 2019, from Thea Comninos, in the following terms:

The email from Ms Comninos, which, again, was sent to the Registry, did not come to my attention during the course of conducting the Family Provision List on 22 March 2019. As there had been no appearance, I ordered, pursuant to UCPR r 13.6, that the directions hearing be adjourned to another date, and directed that not less than 5 days before that date, a notice of the adjournment be served on the Plaintiff, advising that the proceedings may be dismissed if there is no attendance by, or on behalf of, the Plaintiff at the adjourned hearing.

It appears that the Registry provided a written notice, dated 26 March 2019, addressed to the Plaintiff, informing him that the matter had been adjourned until 12 April 2019, and that “if there is no attendance by or on behalf of the plaintiff on the adjourned date, the Court may dismiss the proceedings”.

On 9 April 2019, there was e-filed, in the Registry, a Notice of Appointment of Solicitor. This document revealed that “the Plaintiff has appointed Christopher Sparks of Castle Law Group to act as the plaintiff’s solicitor in these proceedings”.

On 12 April 2019, Mr Sparks, solicitor, appeared on behalf of the Plaintiff. Again, naturally, there was no appearance by, or on behalf of, the Defendant. The Court was informed that Mr Sparks needed time to consider the Plaintiff’s claim. On this occasion, the Court:

As stated, the Summons was served upon the Defendant on 30 April 2019. There is no suggestion that she had been given any prior notice that a Summons had been filed, as it had been, almost 5 months earlier.

On 3 May 2019, Mr Sparks, solicitor, appeared on behalf of the Plaintiff, and Mr N Bilinsky of counsel appeared on behalf of the Defendant. The Court made the following directions:

Subsequently, no further evidence was filed by, or on behalf of, the Plaintiff. The other documents, required by Paragraph 6 of the Practice Note, had not been filed either.

As stated earlier, on 22 May 2019, the Defendant, by her solicitor, Ms A McIntyre, filed the notice of motion with which I am now dealing. The notice of motion was given the return date of 31 May 2019, despite the fact that it was listed in the Family Provision List on Friday, 24 May 2019.

However, on 24 May 2019, Mr T Yeh, of counsel, appeared on behalf of the Plaintiff. Mr Bilinsky appeared, again, on behalf of the Defendant. The Court made the following directions:

On 3 June 2019, the Defendant provided an outline of submissions dated 31 May 2019 to the Court. A copy of the outline of submissions was said to have been served upon the Plaintiff’s solicitors the week before.

On 6 June 2019, the Plaintiff filed a notice of motion seeking the following relief:

On 6 June 2019, there was filed an affidavit, affirmed 5 June 2019, by the Plaintiff. Relevantly, the affidavit stated:

Annexed to the affidavit was a document, purporting to be from Dr Lou Lewis, addressed to “the Presiding Judge”. It is difficult to know whether this document is authentic bearing in mind its form. However, it is dated 6 June 2019, and it states:

On 7 June 2019, Mr Yeh of counsel again appeared on behalf of the Plaintiff and Mr Bilinsky of counsel again appeared on behalf of the Defendant. With some hesitation, the Court made the following directions:

On 28 June 2019, Mr Yeh, again, appeared on behalf of the Plaintiff and Mr Bilinsky of counsel again appeared on behalf of the Defendant.

I then made the following order and direction:

Despite what had been written by the Plaintiff in his affidavit of 6 June 2019, and despite the passage of 3 weeks thereafter, and even at the date of hearing of the notice of motion about 2 weeks after that, no additional evidence, at all, was filed, or served, by, or on behalf of, the Plaintiff

Having received no outline of submissions from the Plaintiff’s legal representatives, my Associate, at my request, sent an email, dated 16 July 2019, at 2:08 p.m., which was in the following terms, to the legal representatives of the parties:

At 12:34 p.m. on 17 July 2019, my Associate received the following email from Mr Sparks.

(Despite the email from Mr Sparks being sent to my Associate a day after my Associate had sent the email, there is no evidence that the email from the Court the day before had not come to his attention the day it was sent, or that he had failed to read the email shortly after it was sent.)

There was no affidavit, or other evidence, supporting the assertion made in the Plaintiff’s solicitor’s email, attached to the email, and no evidence was provided, subsequently, supporting the assertion of the Plaintiff’s continuing ill-health.

At my request, on 17 July 2019 at 12:41 p.m. the following email was then sent by my Associate to the Plaintiff’s solicitor:

No further response was received from the Plaintiff’s solicitor, although a search of the Court’s computerised record system revealed that at 3:51 p.m. on 17 July 2019, a Notice of Intention of Ceasing to Act had been filed. (The Notice was not formally served upon the Defendant’s solicitor: Tcpt, 18 July 2019, p 1(47)).

No submissions were received by, or on behalf of, the Plaintiff.

At shortly before 10:00 a.m. on 18 July 2019, the matter was called. Mr Bilinsky appeared for the Defendant. There was no appearance by, or on behalf of, the Plaintiff.

In view of the earlier history of the matter, I adjourned the proceedings, and at 10:05 a.m., my Associate, at my request, sent an email, in the following terms, to the Registry of the Court:

I also adjourned to “give the Plaintiff an opportunity to come just in case he is unwell and he is running late” (Tcpt, 18 July 2019, p 2(11-14)) and to give the Defendant’s solicitor an opportunity to check to see whether she had received an email correspondence from, or on behalf of, the Plaintiff (Tcpt, 18 July 2019, p 2(32-35).

At about 10:30 a.m. the following email was received from the Registry:

Following receipt of the email, the hearing again proceeded. It was called outside the Court, and once again, there was no appearance by, or on behalf of the Plaintiff.

Upon returning to Court, there was discussion about UCPR r 7.29, which provides:

This rule prevents the solicitor of a party from ceasing to act shortly before a hearing without leave. It follows that there had been non-compliance, by the Plaintiff’s solicitors, with this rule. There had been no application made for leave and no evidence relied on in support of any such application in any event.

Because I considered that the Court was obliged to accord procedural fairness to the Plaintiff, which extended to his having an opportunity to be heard before the issues in the notice of motion were decided, I asked the Defendant’s legal representative to contact Mr Sparks to see if he wished to appear on behalf of the Plaintiff.

Very fairly, if I may say, Ms A McIntyre, the Defendant’s solicitor, without any hesitation or opposition, acceded to the suggestion that she should contact the Plaintiff’s solicitor, by telephone, and confirm that the matter was proceeding and enquiring whether he wished to appear.

Subsequently, Mr Bilinsky informed the Court that Ms McIntyre had contacted the Plaintiff’s solicitor, and that he was going to appear: Tcpt, 18 July 2019, p 4(19) – p 5(14). In the circumstances, the matter was adjourned until his arrival at about noon. I am satisfied that, in this way, an opportunity was given to the Plaintiff to be heard.

Upon his arrival, the Plaintiff’s solicitor apologised to the Court, and explained, from the Bar table, that since 28 June 2019, his firm had not been able to obtain instructions from the Plaintiff, despite many attempts to do so. He accepted that there had not been compliance with the UCPR in relation to the Notice of Intention to Cease to Act and he remained in Court: Tcpt, 18 July 2019, p 5(25) – p 7(12).

The Plaintiff’s solicitor then made an application for an adjournment of the notice of motion which was opposed by the Defendant: Tcpt, 18 July 2019, p 7(10-14). (Of course, he did not have explicit instructions to make such an application. The application was made, presumably, on implied instructions to act in the best interests of the Plaintiff as the solicitor’s then client.)

I was reminded that the Plaintiff was aware that the Defendant’s notice of motion had been listed for hearing as he had been present in Court, with his solicitor and counsel when the notice of motion was listed for hearing. His solicitors had been served with the outline of submissions that highlighted the inadequacy of the evidence to support the Plaintiff’s case, before the Court. His solicitors had also been reminded about the failure to provide submissions in accordance with the Court’s directions.

In Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 27, it was said, at [103], that it will almost always be necessary to put forward an explanation for a delay if an adjournment is sought in proceedings.

There was no real basis advanced for the adjournment other than the failure of the Plaintiff to provide instructions, which failure was said to be because of his ill health, the precise details of which ill-health, particularly in the period between 28 June and 18 July 2019, was not the subject of any evidence. Furthermore, what was said to be the medical evidence annexed to the Plaintiff’s affidavit of 6 June 2019, did not relate to the entire period after the date of the report, to which report reference has been made.

Indeed, other than speculation by the solicitor, there was no evidence, at all, going to the reasons why the Plaintiff had not communicated with his solicitor.

In any event, the medical conditions from which the Plaintiff was said to suffer appear to be long standing. The Court can have little confidence that during an adjournment of the hearing of the notice of motion, the Plaintiff’s suggested continuing health difficulties would be relieved. Furthermore, notably the medical report to which reference has been made, does not state that the Plaintiff is physically unfit to give instructions. Nor does it state that he is disabled from attending upon his legal representatives, or, otherwise, from answering questions which they might ask of him. Finally, the report which was dated 6 June 2019, concluded that “he is not in the position to complete all of the works for his legal matter for another 3 weeks”. That period “to complete all of the works” was granted by the Court, and additionally, a further period of almost 3 weeks had passed before the hearing.

Although the Plaintiff’s alleged medical conditions may have made it difficult for him to present his case on his own, his asserted conditions do not appear to be such as to preclude him from preparing, or from giving instructions for his legal representatives to prepare, for the defence of the notice of motion.

Furthermore, there was no evidentiary basis to enable me to conclude that there was any reasonable prospect of the Plaintiff being able, or willing, to give instructions to his solicitors during the period of any adjournment, if an adjournment were granted. He has had since about 9 April 2019, that is, over three months, to provide detailed instructions to his solicitors. Even before that time, the matter had been adjourned, several times, at his request.

As well, no satisfactory explanation, in my opinion, was given for the making of the application for an adjournment at such a late stage, particularly in circumstances where the proceedings had been case managed, and where the Defendant’s notice of motion had been on foot for some time. By way of comparison, since being served with the Summons, the Defendant has conscientiously attended to defend the proceedings.

Finally, in light of the Plaintiff’s evidence about his financial circumstances, I considered that the prejudice to the Defendant could not be alleviated, at least in part, by any order for costs.

In determining whether to adjourn these proceedings, the Court, like parties and their legal representatives, are bound by the principles set out in Part 6 of the Civil Procedure Act 2005 (NSW), including s 56(1) which provides that “the overriding purpose of the Act and the rules of court in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings." Of course, the Court is also required to follow the dictates of justice as set out in s 58 of the Civil Procedure Act and to take into account the provisions of ss 56 and 57. The dictates of justice require the Court to also have regard to the interests of the Defendant, who opposed the adjournment, and, who, understandably, would like to have the proceedings, which she says cannot succeed, resolved as expeditiously as possible and at the least possible cost.

I also remember the effect of case management sometimes may be the cause of disadvantage to a party, in order to promote the community’s interest in the delivery of justice. Here, effectively, half a day in the running list had been set aside for the hearing of the Defendant’s notice of motion, after the proceedings had been on foot for nine months. If the hearing was adjourned, another half day of Court time would need to be found at some future date.

In the circumstances, the Plaintiff’s application for the adjournment was refused as I was not persuaded that it was in the interests of justice to grant the adjournment.

The notice of motion then proceeded with counsel for the Defendant referring to all of the relevant documents in the Court file, including the Summons, the two affidavits of the Plaintiff to which reference has been made, and the Defendant’s affidavit. He then made oral submissions in support of the notice of motion supplementing his written submissions, upon which he relied.

The solicitor for the Plaintiff was not able to say too much in opposition. He submitted that the question of eligibility, particularly, whether or not the Plaintiff was wholly or partly dependent upon the deceased, was a question of fact which should be left to a hearing.

When asked to identify factors warranting the making of the Plaintiff’s application, he referred to the Plaintiff’s evidence about the family business. However, he was unable to respond, in any meaningful way, to the question why the Plaintiff would be a natural object of testamentary bounty, particularly bearing in mind the long period of estrangement between the Plaintiff and the deceased.

UCPR r 13.4, relevantly, provides:

A matter that is “frivolous” is one that is without substance, groundless or fanciful. A “vexatious” proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose: Peter Taylor SC et al, Ritchie's Uniform Civil Procedure NSW (2005, LexisNexis Australia) at [13.4.2].

Recently, in In re Rules of the Supreme Court 1971 (WA); ex parte Nikoloff [2019] WASC 263, Hill J wrote, at [21]:

A claim for a family provision order is not immune from the application of UCPR r 13.4 that it be summarily dismissed: Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104, per Lindsay J, at [103]; Brindley v Wade [2019] NSWSC 303, at [12]. Whilst not encouraging such applications, there may be cases in which an abbreviated procedure, taken with the affidavit evidence, will sufficiently expose the facts and the legal issues so that the question whether relief in accordance with the rule relied upon is appropriate can be determined.

As Lindsay J also wrote, at [104]:

The relevant principles that apply in relation to UCPR r 13.4 were summarised by the Court of Appeal, constituted by Beazley, McColl, Macfarlan and Barrett JJA and McClellan CJ in CL, in Shaw v State of New South Wales (2012) 219 IR 87; [2012] NSWCA 102. Barrett JA gave the only judgment (with which the other Judges of Appeal agreed).

At [30]-[32], his Honour wrote:

There is a summary of relevant propositions in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405, at [196]-[200], including a reference to the need to take the plaintiff's case at its highest, accepting the truth of all allegations in the claim, and the ranges of meaning which the assertions of fact are capable of bearing. Also see, Ugur v Attorney General for New South Wales [2019] NSWCA 86, at [71].

In Spencer v Commonwealth (2010) 241 CLR 118, at 140; [2010] HCA 28, at [55], the plurality (Hayne, Crennan, Kiefel and Bell JJ) interpreted the various formulations expressed by Barwick CJ in General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at 129-130; [1964] HCA 69, as different ways of saying “that the case of the plaintiff is so clearly untenable that it cannot possibly succeed”.

In Spencer v Commonwealth, French CJ and Gummow J stated at [25]:

Reference should also be made to the judgment of Leeming JA (with whom Macfarlan and Simpson JJA agreed) in Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83, at 92; [2017] NSWCA 19, at [30] (“Perera”):

Also in Perera, at [30], Leeming JA referred to the passage, at [55], in Spencer v Commonwealth to which I have referred above.

In light of the authorities, there was no dispute, by counsel for the Defendant, that summary dismissal is a jurisdiction that may only be used in a clear case and that it was only if a clear decision could be reached, which could not be affected by any evidence led at trial, that the order sought may be made: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, at 84; [1949] HCA 1, at [26], per Latham CJ. Such an order is not appropriate where there is any serious conflict as to any matter of fact: Sidebottom v Cureton (1937) 54 WN (NSW) 88; Attorney General In and for the State of New South Wales v Markisic [2012] NSWSC 433, per Schmidt J, at [36]. The Court must bear in mind the seriousness of the step of summarily dismissing proceedings and the need to address the relevant question, which is whether, on the evidence as it might unfold, an arguable case is established.

The Court also remembers that “common experience teaches that it is usually more efficient and just to consider the viability of the cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence”: Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272, per Kirby P, at 2.

Counsel for the Defendant also accepted that in considering whether the onus which falls upon the Defendant has been met, the case advanced by the Plaintiff must be approached on the basis that, at this stage, the evidence sought to be relied on must be taken at its highest: Bodikian v Sproule [2009] NSWSC 599; (2009) 72 ACSR 598, at [2]-[4]; Attorney General In and for the State of New South Wales v Markisic [2012] NSWSC 433, per Schmidt J, at [37], and that the Court should proceed upon the basis that the Plaintiff would be able to prove the facts to which he averred in the affidavits read on the notice of motion.

Whilst I do not suggest that family provision claims are ripe for applications for summary dismissal, indeed, generally they are not, what has recently been written by Ward CJ in Eq., in Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843, at [172], should be remembered:

The Defendant’s written outline of submissions does not identify, specifically, which of sub-paragraphs (a), (b) or (c) of UCPR r 13.4 is relied upon. However, it seems to me that all of the sub-paragraphs should be considered.

There can be no dispute that, in this case, that at a hearing of the substantive proceedings, the Plaintiff will have to establish that:

Because the whole of the estate has not been distributed, there remains an estate with an estimated gross value of $607,000. It is unlikely that the Plaintiff’s claim, and the costs of the proceedings, would exceed that amount.

If the Plaintiff were to submit that the estate were insufficient, then, there will have to be an order designating property as notional estate. Because the application for his family provision order is made later than 12 months after the date of the death of the deceased, he will also have to establish (i) the property to be designated as notional estate is property that was the subject of a distribution from the estate of the deceased person; (ii) the person who holds the property holds it as a result of the distribution as trustee only, and (iii) the property is not vested in interest in any beneficiary under the trust, or (b) it is satisfied that there are other special circumstances that justify the making of the notional estate order: s 90(2) of the Act.

In coming to my conclusions, I have assumed that relevant factual matters going to his claims asserted in the affidavits of the Plaintiff will be established. This assumption limits, although it does not extinguish entirely, the concern, expressed by Mukhtar AsJ in Jackson v Newns [2011] VSC 32, at [11] that:

In what follows, I have also remembered that the Court, in this notice of motion, is considering all these issues, not as the Court would at the hearing, but on an application for summary dismissal. That application for summary dismissal does not permit, or require, determination of the Plaintiff’s claim for a family provision order, or any element of that claim, but rather requires a clinical assessment of the question whether the claim is triable, in the relevant sense.

The Defendant argues that the Plaintiff does not now, and, if there were a hearing, would not then, on the material filed, have any prospect of establishing the matters for determination.

I have discussed the relevant principles relating to eligibility and factors warranting the making of the making of an application in Page v Page [2016] NSWSC 1218. An appeal from this decision, which was dismissed, is Page v Page (2017) 16 ASTLR 331; [2017] NSWCA 141.

In the Court of Appeal, in Page v Page, in discussing the issue of dependency, Basten JA wrote, at [10]-[15]:

Sackville AJA wrote at [99]-[101]:

Other than the passage referred to in the Plaintiff’s affidavit, there is a paucity of evidence that the deceased provided much by way of financial support, support otherwise, by way of comfort or solace, or guidance, generally, to the Plaintiff. There is evidence that the parents of the Plaintiff and the deceased, at all times, continued their role as such, providing for their children.

Taking the Plaintiff’s evidence, at its highest, I am satisfied that any financial assistance provided by the deceased to the Plaintiff was no more than minimal and was not significant. It was also a long time prior to the death of the deceased. The level of assistance, without more, could not justify a finding that the Plaintiff was partly dependent on the deceased. Nothing more is suggested by the Plaintiff in his evidence.

Furthermore, there is no evidence that the deceased, personally, provided the Plaintiff with financial support from his own resources. It seems to have been money that came from “the family business”. In this regard, one cannot conclude that the Plaintiff was dependent on the deceased in the relevant sense.

The decision to be made by the Court on the eligibility of the Plaintiff is a “jurisdictional” question, in the sense that the application must be dismissed if it is answered unfavourably to the Plaintiff. The question whether the Plaintiff has demonstrated to the satisfaction of the Court that he was wholly or partly dependent upon the deceased is an evaluative one. Of course, the eligibility of the Plaintiff is also a factual decision. It is unlikely that the hearing will provide a different, or better, forum for an argument of a more extensive kind on this question.

It is to be remembered in this regard, that the Plaintiff has been given several opportunities to serve further affidavit evidence in support of the substantive claim and has not provided any such evidence.

It is equally unlikely that any cross-examination of the Defendant will provide any further evidence on this topic. It is to be remembered that the dependency relied upon is dependency when the Plaintiff was a teenager and, perhaps, a little older. It is not likely that the Defendant would be able to offer any evidence on this topic.

Having read all of the evidence of the Plaintiff, and taking it at its highest, I am not satisfied that he has established a triable issue on the question of eligibility – namely that he was wholly or partly dependent upon the deceased. Therefore, he will not be able to establish eligibility and his claim must fail.

But even if I am wrong, in my view, the Plaintiff has not identified, in his evidence, any factors that would warrant the making of his application.

In Page v Page, I wrote at [172]-[183]:

In the Court of Appeal, there was not very much discussion about what I had written as to the relevant principles as there was no error in my finding regarding eligibility, and, therefore, it was not necessary to decide whether there was error in finding that there were no factors warranting the making of the application.

In the present case, there are simply no factors warranting the making of the Plaintiff’s application. The tenuous and distant (in time) nature of his dependency (assuming that it could be established) on the deceased would lead to a conclusion that there were no circumstances warranting the making of the Plaintiff’s claim. As importantly, it appears that there was very little, if any, contact between the Plaintiff and the deceased for more than 40 years prior to the death of the deceased (at least since the 1970’s). There is nothing in their relationship over that lengthy period that creates an obligation, on the part of the deceased, to make provision for the Plaintiff in his Will. It is impossible to conclude that the Plaintiff would be able to establish any factors which, when added to the facts which render him an eligible person, give him the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition.

Having read all of the evidence of the Plaintiff, and taking it at its highest, I am not satisfied that he has established a triable issue on the question of factors warranting the making of the application.

Next, I deal with the extension of time issue. Strictly, it is unnecessary to deal with this aspect, since there would be no reason to make an order extending the time for the making of the application if the Plaintiff is not an eligible person or was not able to establish factors for the making of his application.

However, for completeness, I shall determine whether there is a triable issue on this aspect also. The Summons is dated 16 November 2018, although it was filed on 28 November 2018. There is no other evidence supporting what was written by the Plaintiff in his second affidavit. The date of the deceased’s death was 16 November 2018, which means that, at worst, the Summons was filed less than 2 weeks later than the time prescribed by the Act for the making of the application.

Again, taking the Plaintiff’s evidence at its highest and for the purposes of the Defendant’s notice of motion accepting that he would be able to establish that there was a difficulty filing the Summons because of his application for the deferral/exemption of the filing fee, subject to other matters, I would not dismiss the proceedings upon the basis that he would not be able to establish “sufficient cause” as required by s 58(2).

Finally, although it is strictly unnecessary to do so, I turn to whether there is enough evidence to satisfy me that the Plaintiff would be able to satisfy the Court that there is a triable issue on the question whether, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made by the Will of the deceased.

I am simply unable to conclude that the Plaintiff has established such a triable issue. In this regard, it is not possible to see any basis to conclude that the deceased had a social, domestic, or moral, obligation to make provision for the proper maintenance or advancement in life of his younger brother with whom he had no contact for over 40 years. The Plaintiff’s application amounts to little more than a contention that an obligation was owed to him because he was the deceased’s brother and because the deceased had been favoured by their parents. Neither is a satisfactory basis for the Court to be satisfied that the deceased owed him an obligation to make any provision for him. There is simply no evidence to lead to the view that the deceased’s undoubted freedom of testamentary disposition was affected by any circumstances leading to having to make provision for the Plaintiff.

In all the circumstances of this case, and bearing in mind the constraints operating upon the Court in determining the Defendant’s application, I am satisfied that the continuation of the proceedings would be an abuse of process and frivolous, in the sense that the Plaintiff’s case is without substance. In my view, it cannot possibly succeed. Exercising the "great care" and "exceptional caution" that is required, and remembering that to order summary judgment should be sparingly employed, the application of the Defendant for summary dismissal of the Plaintiff’s claim must succeed and the Plaintiff’s Summons should be dismissed with costs.

The Court orders that: