Family Provision Application: exercising the correct legal principle & discretion

Mortimer v Lusink & Ors [2017] QCA 1

Gotterson and Morrison JA and Jackson J

In 2016 the appellant was denied leave to bring an application for adequate provision out of the deceased’s estate for her proper maintenance and support. In summary, the learned primary judge dismissed the application for the following reasons:

[41] The applicant must do more than show that she might succeed. She has to demonstrate ‘a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time’. This she has not done. The factors in her favour are too weak to justify the order sought. Further, even if the application were allowed to proceed and the applicant were to succeed, I am satisfied that any order that might be made in the applicant’s favour would be so limited that it would be disproportionate to the costs involved.

The grounds of appeal were categorised into errors of principle and fact.

Errors of principle

The appellant submitted that the primary judge erred by reaching a conclusion by applying the principles applicable to the grant of final relief, rather than the principles applicable to the exercise of the discretion under s 41(8) of the Succession Act 1981 (Qld). Finding that the primary judge erred in this regard, Gotterson JA reasoned as follows:

[45] … it was relevant for the learned primary judge to have enquired into whether the appellant’s claim was one that was clearly unlikely to succeed or was one that would probably fail. It was noteworthy that in other jurisdictions, intermediate courts of appeal have held that under the comparable statutory provision, the relevant enquiry is as to whether or not an arguable case has been made out by the applicant for relief.

[46] His Honour did not, however, undertake such an enquiry. He did not address the issue whether the appellant’s case was clearly unlikely to succeed. Nor did he enquire into whether it would probably fail. He expressed no view as to whether there was an arguable case. In undertaking the assessment that he did make, his Honour appears to have conflated the concept of a substantial case for relief under s 41(8) with the concept of a prima facie case for a substantial award by way of final relief.

Finding that the primary decision ought to be set aside, his Honour went on to consider the alleged errors of fact.

Errors of fact

At paragraphs [50] – [59], Gotterson JA discussed the primary judge’s consideration of the facts pertaining to the appellant’s financial position. His Honour noted, inter alia, that the primary judge’s finding that the appellant is living in modest financial circumstances were contrary to the evidence. Gotterson JA stated:

[59] I would accept that the conclusion expressed by his Honour is questionable in light of this evidence. To my mind, it does not reflect adequately the considerable constraints imposed on the applicant and her husband’s lifestyle by their limited financial means. Moreover, it gives no recognition to the appellant’s financial vulnerability in the event that her husband predeceases her and his pension ceases.

In conclusion, Gotterson JA stated:

[61] The evidential factors to which I have referred in the preceding discussion leads irresistibly to a conclusion that the financial resources available to the appellant are insufficient to meet her needs now and into the future

[62] Whilst an award for further provision for the appellant would not be expected to equate to the totality of the insufficiency in her resources, there is a capacity in the estate for significant further provision to be made for her.

[63] … the appellant has advanced an arguable claim for further provision out of the deceased’s estate.  It is not a claim that is clearly unlikely to succeed.  It cannot be said that it will probably fail.  I am therefore satisfied that, in all these circumstances, the discretion under s 41(8) ought to be exercised in the appellant’s favour.

As to the costs of the appeal, Gotterson JA granted an indemnity certificate stating:

[66] A certificate may be granted under s 15(1) in an appeal to this Court which succeeds on a question of law.  Here, the appeal has succeeded on a question of law.  The error of law on which the appellant has succeeded was one of failure on the part of the learned primary judge to observe the applicable principles of law.

Morrison JA agreed with Gotterson JA. However, Jackson J dissented in relation to the indemnity certificate. Jackson J stated:

[85] Although there was an error of law in the primary judge’s reasoning, it was an error into which he was led by the respondent’s opposition to the application for leave made under s 41(8) of the Succession Act 1981 (Qld) and the grounds of that opposition

[87] … there was no arguable subtlety in the application of the relevant legal tests to the facts in the present case which justified the respondent’s grounds of opposition below or in this court.  The respondent simply took a hard line in opposition to an application made under s 41(8) when, prima facie, the application had reasonable prospects of success.

David Cormack – Brisbane Barrister & Mediator

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