Bisdee v Smith (No 2) - [2005] TASSC 76

[2005] TASSC 76

CITATION: Bisdee v Smith (No 2) [2005] TASSC 76

PARTIES:  BISDEE, Susan Jillian
  v
  SMITH, Shane Allan

SMITH, Andrew Charles
SMITH, Matthew

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  225/2003

M12/2004

DELIVERED ON:  11 August 2005
DELIVERED AT:  Hobart
HEARING DATE:  25 July 2005
JUDGMENT OF:  Blow J

CATCHWORDS:

Succession – Wills, probate and administration – Probate and letters of administration – Costs – Where litigation not caused by testator – Reasonableness – Unsuccessful opposition – Probate action and application for order that section invalidating gift to spouse of witness does not apply – Continuation of opposition becoming unreasonable.

Mitchell v Gard (1863) 3 Sw & Tr 275; 164 ER 1280; Spiers v English [1907] P 122, referred to.
Aust Dig Succession [138]

REPRESENTATION:

Counsel:
             Plaintiff/Applicant:  T J Williams
             Defendants/Respondents:              M E O'Farrell
Solicitors:
             Plaintiff/Applicant:  Gunson Williams
             Defendants/Respondents:              Simmons Wolfhagen

Judgment Number: [2005] TASSC 76
Number of paragraphs: 15

Serial No 76/2005
File Nos 225/2003
M12/2004

SUSAN JILLIAN BISDEE v SHANE ALLAN SMITH,
ANDREW CHARLES SMITH MATTHEW SMITH (NO 2)

REASONS FOR JUDGMENT BLOW J

11 August 2005

Two applications for costs have been made to me in relation to a probate action and an application under the Wills Act 1992, s46(1). Both proceedings related to the will of the mother of the plaintiff/applicant. The testator left the whole of her estate to the plaintiff, but one of the attesting witnesses was the plaintiff's husband. On 17 December last I made an order that probate of the will be granted to the plaintiff, and a declaration that the Wills Act, s44, which would have invalidated the gift to the plaintiff, did not apply in relation to her in respect of the will: Bisdee v Smith [2004] TASSC 152. The unsuccessful defendants/respondents have applied for orders that their costs of both proceedings be paid out of the estate. The successful plaintiff/applicant opposes that course, and has applied for orders that the defendants/respondents pay her costs of both proceedings.

This Court's power to award costs is conferred by the Supreme Court Civil Procedure Act 1932, s12, which includes the following:

"(1) Subject to the provisions of this Act and the Rules of Court, and to the express provisions of any special statute which is not expressly or impliedly repealed by this Act, the Court and every judge thereof, whether sitting in court or in chambers, shall have jurisdiction to award costs in all causes and matters whatsoever (including proceedings for, or on, or in connection with an order of review under the Judicial Review Act 2000 or a writ of habeas corpus and causes and matters dismissed for want of jurisdiction) instituted in the Court or brought before the Court or a judge thereof by or against any party or person, including the Attorney-General and any body politic.
(2) Subject as provided in subsection (1) the costs of all proceedings whatsoever in the Court, including the administration of estates and trusts,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bisdee v Smith (No 2)

Details

AGLC: Bisdee v Smith (No 2) [2005] TASSC 76
Case: [2005] TASSC 76
Decision Date: 11 August 2005

CaseChat Overview and Summary

Bisdee v Smith (No 2) involved a dispute over the validity of a will and the associated costs of the litigation. The matter was before the Supreme Court of Queensland. The primary issue was whether the costs incurred in opposing the grant of probate were reasonable, particularly given that the opposition was not instigated by the deceased. The opposition arose from the application by the executor to have the will probated, which was contested by a beneficiary who sought to have a section of the will declared invalid on the basis that it invalidated a gift to the spouse of one of the witnesses.

The court examined the circumstances under which the opposition was mounted and concluded that the continuation of the opposition became unreasonable. The opposition was initially reasonable as it was based on a valid legal argument; however, the court found that the persistence in opposing the grant of probate, despite clear evidence supporting the validity of the will, was not justified. The court held that the unsuccessful opposition was unreasonable, and therefore, the costs incurred in relation to the continuation of the opposition were not recoverable. This decision underscored the importance of proportionality in the context of legal disputes and the consequences of pursuing litigation that lacks merit.

The court also addressed the application to declare a section of the will invalid, finding that the application was not supported by the evidence. Consequently, the will was probated as presented, and the costs associated with the unsuccessful opposition were not awarded. The court's decision highlighted the need for parties to carefully consider the merits of their legal actions to avoid incurring disproportionate costs. The final orders reflected the court's findings, granting probate of the will and dismissing the application to declare a section invalid, along with the costs order pertaining to the unreasonable opposition.

Orders