Blair v Blair

[2002] VSC 125

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4257 of 2000

In the Matter of Part IV of the Administration and Probate Act 1958

In the Matter of the Will and Estate of DOUGLAS WILLIAM BLAIR (Deceased)

RICHARD MALCOLM DOUGLAS BLAIR	Plaintiff
v.
STEPHEN GARDE BLAIR	Defendant

---

JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 APRIL 2002
DATE OF RULING:	23 APRIL 2002
CASE MAY BE CITED AS:	BLAIR v. BLAIR
MEDIUM NEUTRAL CITATION:	[2002] VSC 125

---

CATCHWORDS:      Ruling – Costs – Testator's Family Maintenance – Whether successful plaintiff entitled to costs on a solicitor client basis.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. R. Wells with Mr. A. Verspaandonk	Ingpen & Bent
For the Defendant	Mr. R. Cook	Koutsantoni & Associates

HIS HONOUR:

1. My judgment in this matter was delivered on 4 April 2002.  I then held that the testator, Douglas Blair, had failed to make adequate provision for the proper maintenance and support of his younger son, the plaintiff (Richard Blair).  The plaintiff now seeks an order that his solicitor/client costs be paid out of the residuary estate.

1. Successful plaintiffs in cases brought, as was this, under Part IV of the Administration and Probate Act 1958 are ordinarily also granted their costs. These are, moreover, ordinarily ordered to be assessed on the basis for which Richard contends. Were that not so, the successful plaintiff would not, after costs have been taken into account, receive that provision which the Court has (given the success of the claim) held to be proper.

1. Douglas Blair's estate was divided between Richard and his elder brother, Stephen.  The former received a legacy of $150,000;  the latter received the whole of the residue.  The two brothers being the only persons with a claim to or interest in the estate of the testator, it is necessarily Stephen as the residuary beneficiary who will bear the entire burden of any order for costs in Richard's favour.  In other words, if Richard's submissions on the question are adopted, Stephen will himself bear the entire costs of both parties to the proceeding.  There is no opportunity to spread the burden of those costs among a number of persons. 

1. An offer of compromise was served on the plaintiff on or about 25 August 2000.  It was in the sum of $200,000.  It thus corresponded to the amount determined by me to be that which Douglas should have provided for Richard's maintenance and support.  It included, moreover, an offer to "pay the plaintiff's costs on a party/party basis".  Unfortunately, however, the offer made no provision for the payment of interest.  Indeed, the covering letter which accompanied the formal offer document expressly stated that, if the offer were accepted, Richard "would receive total payments from the estate in the sum of $200,000" together with the costs to which I have already referred.  The offer was expressed to remain open for 21 days after service.

1. The absence from the offer of any allowance for interest resulted in it being less favourable to the plaintiff than the judgment he obtained:  which, of course, will carry interest.  Accordingly, Stephen cannot invoke in his favour the provisions of r.26.08(3) of the Rules of the Supreme Court.

1. Richard submits that the consequence is that his costs should be assessed in accordance with that which is usual in cases of this kind;  in other words, on a solicitor/client basis.  I do not agree.  In my opinion, the plaintiff should get his costs, but only as between party and party.  Any other result would, it seems to me, impact unfairly upon Stephen.  I have already referred to his exposed position on this point.  The following considerations are, I think, also material.

1. So far as the evidence goes, it seems that neither party was prepared to be sufficiently flexible in the negotiations which followed Richard's claim.  His opening bid, made within weeks after his father's death, was for a one half share of the estate.  This was reflected in the primary submission put forward by him at trial.  At that time, Richard again argued for a half share.  This claim was in my opinion without any foundation.

1. Stephen's offer of $200,000 was, if one puts the question of costs aside for the moment, tantalisingly close to the amount that, as a result of my judgment, Richard will actually receive.  The addition of interest would have closed that narrow gap.  That additional amount was, so far as I am aware, never offered.  On the other hand (again, so far as I am aware) neither did Richard suggest that the inclusion of interest would avoid the litigation, and the enormous expenditure on costs, which followed;  and which has done nothing for a relationship suffering perhaps from a lack of generosity of spirit on both sides:  Stephen, in failing to recognise that his younger brother had not received support comparable to that given to him;  and Richard, in failing to recognise the significance of the 19 years during which his father and brother worked in close relationship on the family's principal asset – an asset in the preservation of which both father and elder son had developed a common and legitimate interest.  On the evidence available to me, Richard also failed to appreciate that his father had the right to do what he liked with his property, subject only to a residual obligation to provide his younger son with some seed capital.

1. It is in my opinion relevant that Richard was not dependent on his father at the time of Douglas' death.  He was then and is now a Geelong veterinary surgeon who maintained and maintains himself and his family with no assistance from his father or (save for the legacy) his father's estate.  I held that the only deficiency in Douglas' provision for Richard arose from the fact that, while Stephen had been given by his father real assistance (albeit assistance which is immeasurable in precise monetary terms) in beginning a career in the cattle industry, Richard had received no help in establishing his veterinary practice.  Otherwise, Richard (a) received at the hands of his parents a good home and a good education, and (b) now has available to him adequate means of providing for the proper maintenance and support of himself and his family.  His veterinary practice has grown since the death of his father.  If the additional benefit which Richard will receive by reason of my judgment is reduced because all his legal costs are not recovered, he will not be deprived of the means to continue to provide for himself and his family.  It follows that the rationale for awarding, in the usual case, costs assessed as between solicitor and client does not obtain here.

1. These considerations lead me to the conclusion that, to an extent at least, the costs of this litigation should be shared between the parties.  I do not, given the circumstances which I have outlined above, think it appropriate that all Richard's costs should be paid out of the estate – which, in effect, would mean by Stephen.  The appropriate order is, in my opinion, that Richard's costs of the proceeding be paid out of the estate on a party/party basis.  The result will be that Richard will be required to bear a proportion of his costs himself.

---