Baur v Sims (As Administrator of the Estate of Jennifer Ballantyne)
[2015] WASC 278
•3 AUGUST 2015
BAUR -v- SIMS (As Administrator Of The Estate Of Jennifer Ballantyne) [2015] WASC 278
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 278 | |
| Case No: | CIV:1525/2013 | ON THE PAPERS | |
| Coram: | PRITCHARD J | 3/08/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Applications granted | ||
| B | |||
| PDF Version |
| Parties: | KURT RUDOLF BAUR MICHAEL JAMES SIMS (As Administrator Of The Estate Of Jennifer Ballantyne) FIONA MELANIE KIERATH (Beneficiary Of The Estate Of Jennifer Ballantyne) ROBERT CHARLES SCOTT CATHERINE ANNE HARRIES LISA HANNAN SHIRLEY FLETCHER JANICE DOREEN MORRIS STEVEN ALAN TAYLOR SIMONE MARGARET BARR VARNER THE FIONA WOOD FOUNDATION INC (Formerly Known As McComb Foundation Inc) |
Catchwords: | Family provision Family Provision Act 1972 Costs of parties Application for costs to be paid out of the estate Quantum of costs Application for proceedings to be discontinued against the fourth defendant Practice and procedure Application for proceedings to be discontinued against the fourth defendant Turns on own facts |
Legislation: | Family Provision Act 1972 (WA) |
Case References: | Daniels v Hall (As Administrator of the Estate of Arnold Edward Daniels) [No 2] [2014] WASC 272 Scott v Second Skin Pty Ltd [2015] WASC 12 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MICHAEL JAMES SIMS (As Administrator Of The Estate Of Jennifer Ballantyne)
First Defendant
FIONA MELANIE KIERATH (Beneficiary Of The Estate Of Jennifer Ballantyne)
Third Defendant
ROBERT CHARLES SCOTT
Fourth Defendant
CATHERINE ANNE HARRIES
Fifth Defendant
LISA HANNAN
Sixth Defendant
SHIRLEY FLETCHER
Seventh Defendant
JANICE DOREEN MORRIS
Eighth Defendant
STEVEN ALAN TAYLOR
Ninth Defendant
SIMONE MARGARET BARR VARNER
Tenth Defendant
THE FIONA WOOD FOUNDATION INC (Formerly Known As McComb Foundation Inc)
Eleventh Defendant
Catchwords:
Family provision - Family Provision Act 1972 - Costs of parties - Application for costs to be paid out of the estate - Quantum of costs - Application for proceedings to be discontinued against the fourth defendant
Practice and procedure - Application for proceedings to be discontinued against the fourth defendant - Turns on own facts
Legislation:
Family Provision Act 1972 (WA)
Result:
Applications granted
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Solicitors:
Plaintiff : Bennett + Co
First Defendant : Chew & Matthews
Third Defendant : No appearance
Fourth Defendant : Macdonald Rudder
Fifth Defendant : Jackson McDonald
Sixth Defendant : Jackson McDonald
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Cases referred to in judgment:
Daniels v Hall (As Administrator of the Estate of Arnold Edward Daniels) [No 2] [2014] WASC 272
Scott v Second Skin Pty Ltd [2015] WASC 12
1 PRITCHARD J: By an Originating Summons dated 3 April 2013, Mr Baur commenced proceedings under the Family Provision Act 1972 (WA). Mr Baur contended that the late Jennifer Ballantyne did not make adequate provision from her estate (the Estate) for his proper maintenance, support, education or advance in life. Mr Baur named the Executors of Ms Ballantyne's will as defendants to the Originating Summons, but also named all of the beneficiaries under Ms Ballantyne's will (other than those who were the recipients of specified gifts, which had already been paid out of the Estate). Mr Scott, who was one of those beneficiaries, was named as the fourth defendant to the Originating Summons.
2 In her will, Ms Ballantyne provided for the gift to Mr Scott of her interest in a property in South Perth, on the condition that Mr Scott relinquish and transfer to the Estate 'any and all share and interest' in a business known as 'Second Skin', and a company called Second Skin Pty Ltd, to which Mr Scott may be entitled, including as a beneficiary under a trust.
3 Mr Scott's share in Second Skin Pty Ltd has since been clarified in other proceedings in this Court.1
4 Mr Scott has now made it clear that he does not intend to relinquish his share in Second Skin Pty Ltd. By an affidavit sworn 7 May 2015, Mr Scott referred to the conditional gift provided for him in Ms Ballantyne's will, formally renounced that gift and undertook not to seek leave to make a claim to vary Ms Ballantyne's will under the Family Provision Act.
5 Mr Scott now seeks that the following orders be made:
1. These proceedings be wholly discontinued as against the fourth defendant;
2. The Estate do pay the fourth defendant's costs of the matter, including reserved costs and costs expressed to be in the cause; and
3. The question of whether the quantum of the costs the subject of order 2 ought to be fixed or ascertained by means of a taxation in lieu of agreement should be determined by the Court on the papers.
6 These proposed orders were consented to by Mr Baur, and by Mr Sims (who is now the Executor of the Estate). None of the other parties to the Originating Summons sought to be heard in respect of the orders sought by Mr Scott.
7 For the reasons outlined below, the proceedings against Mr Scott should be discontinued. In addition, Mr Scott's costs should be paid out of the Estate. Further, I have reached the conclusion that I have all the information necessary to fix the costs which should be paid out of the Estate, and that I should do so, rather than referring Mr Scott's costs for taxation. The Estate should pay Mr Scott's costs in the sum of $6752.50.
Payment of the costs out of the Estate
8 As it is very clear that Mr Scott has renounced the conditional gift made to him under Ms Ballantyne's will, and that he makes no claim on the Estate, the determination of Mr Baur's claim under the Family Provision Act can proceed without recourse to Mr Scott, and Mr Scott should not be faced with the cost and inconvenience of further participation in the litigation. An order should therefore be made that the proceedings be discontinued as against him.
9 The principles applicable to the award of costs in proceedings under the Family Provision Act were discussed in detail by EM Heenan J in Daniels v Hall (As Administrator of the State of Arnold Edward Daniels).2 The Court has a broad jurisdiction to make such orders as to the costs of any proceeding under the Family Provision Act as it deems just.3
10 I am persuaded that Mr Scott's costs should be paid out of the Estate. He was named as a defendant to these proceedings. The extent (if any) of Mr Scott's participation in the proceedings was a question which could not be resolved until such time as the question of his entitlement to a share in Second Skin Pty Ltd was determined. Following the resolution of that issue, Mr Scott sought to clarify his position with respect to the conditional gift made to him under Ms Ballantyne's will at the earliest reasonable opportunity. In my view, Mr Scott is entitled to his costs on a party-party basis, and those costs should properly be paid out of the Estate.
11 I have formed the view that it is appropriate for me to fix those costs, rather than to require the parties to proceed to taxation having regard to the fact that the costs pertain to an individual defendant beneficiary only, to the confined parameters of the circumstances in which costs have so far been incurred by Mr Scott, to the fact that the Court has before it the information it requires to make an assessment of the quantum of costs which is just in all of those circumstances, and to save the parties any further expense and delay by the need to proceed to a taxation.4 In reaching that conclusion, and in fixing the quantum of the costs which should be paid, I have been particularly assisted by a draft bill of costs prepared by Mr Scott's solicitors, by submissions in respect of that draft bill prepared by Mr Sims, the executor of the Estate, and by submissions prepared by Mr Scott's solicitors, which explained the basis on which the costs set out in the draft bill were sought.
The quantum of the costs sought
12 Mr Scott sought costs in respect of filing a memorandum of appearance, attending two status conferences (at which costs were fixed), preparing for, and attending, two mediation conferences, and attending two directions hearings. Mr Sims and Mr Scott agreed that a reasonable allowance for party-party costs in respect of the work carried out in respect of those matters was $4860.50. I accept that that is so.
13 The area of contention in relation to the costs which should properly be awarded concerned whether there should be an additional allowance for the preparation of the case. Mr Scott initially sought an amount of $4,079 which was said to reflect 'more, but say 9 hours' including '1. considering originating summons, statements and affidavits; 2. taking instructions; 3. considering documents; and 4. preparing fourth defendant's affidavit sworn [7] May 2015'. However, in their written submissions in support of Mr Scott's application for costs, Mr Scott's solicitors submitted that 'an allowance of $3,000 for preparation of case, including drawing the draft bill of costs, is a reasonable allowance'.
14 Mr Sims submitted that no allowance should be made for a separate item for 'preparation of case', other than for a modest allowance for the preparation of Mr Scott's affidavit of 7 May 2015, because:
the substantive papers filed in this matter to date consist, in essence, of no more than a short originating process and less than 40 pages of affidavit material, it is submitted that the four hours allowance provided … for preparing for mediation is more than adequate allowance in respect of considering the originating summons and supporting affidavits, taking instructions and considering documents and that no further or separate allowance in respect of 'getting up' is warranted.
15 In my view, the reasonable allowance for Mr Scott's party-party costs for the general preparation of the case, including the determination of the quantum of Mr Scott's costs, is an allowance of four hours at the senior practitioner rate under the scale set out in the Legal Profession (Supreme Court) (Contentious Business) Determination 2014, totalling $1892.00. I have reached that view for the following reasons.
16 First, in my view, some allowance should be made for the preparation of the case over and above that which is subsumed within the costs I propose to allow for preparation for the two mediations (referred to above) although that allowance should be less than the amount claimed by Mr Scott. The Originating Process and affidavits filed in the proceedings thus far comprise less than 100 pages in length. Those documents were filed prior to the mediations in 2013. Accordingly, in so far as Mr Scott seeks an amount for preparation of the case which comprises considering the originating summons, and the statements and affidavits, I consider that the majority of that work would be accounted for in the allowance made for preparation for the mediation conferences. On the other hand, as I have mentioned, the extent of Mr Scott's participation in the present proceedings could not be resolved until the question of his entitlement to a share in Second Skin Pty Ltd was resolved. That did not occur until late in 2014. An allowance should be made for the cost of taking instructions from Mr Scott as to how to proceed in the present proceedings in view of the outcome of that question. In addition, an allowance should also be made for the preparation of Mr Scott's affidavit of 7 May 2015.
17 Secondly, Mr Sims submitted that no separate allowance should be made in respect of drawing the draft bill of costs as 'the purpose of fixing costs is expressly to avoid the delay and expense involved in taxation'. In my view, an allowance should be made for the preparation of the draft bill of costs, and for the submissions prepared by Mr Scott's solicitors in relation to those costs. But for the preparation of those documents (in addition to the submissions prepared by Mr Sims), it would have been necessary for the question of costs to be referred to taxation, which would have involved at least the same (and probably greater) cost to all concerned, and those costs would no doubt have been the subject of an allowance to Mr Scott on the taxation.
18 Thirdly, as the work to which I have referred was undertaken after 1 July 2014, but prior to 1 July 2015, the applicable scale is that set out in the Legal Profession (Supreme Court) (Contentious Business) Determination 2014.
19 Accordingly, in my view, the total quantum of the party-party costs which should be paid from the Estate to Mr Scott is $6752.50.
Orders
20 I make the following orders:
1. The proceedings be wholly discontinued as against the fourth defendant; and
2. The Estate do pay the fourth defendant's costs of the action, including reserved costs, fixed in the sum of $6752.50.
1Scott v Second Skin Pty Ltd[2015] WASC 126.
2Daniels v Hall (As Administrator of the Estate of Arnold Edward Daniels) [No 2][2014] WASC 272 [10] - [37].
3 See Family Provision Act 1972 (WA) s 14(6), and see also Rules of the Supreme Court 1971 (WA) O 66.
4 Cf Daniels v Hall (As Administrator of the Estate of Arnold Edward Daniels) [No 2][2014] WASC 272 [27] (EM Heenan J).
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