Boulton v Sanders (No 2)

[2003] VSC 409

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4142 of 2003

ELAINE SUSAN BOULTON	Plaintiff
v
ROGER KEITH SANDERS	First Defendant
PETER JAMES SANDERS	Second Defendant
BARBARA JOY CHAPMAN (formerly Sanders)	Third Defendant
JANET RUTH AUSTIN (formerly Sanders)	Fourth Defendant
JUDITH REBECCA LING  (formerly Sanders)	Fifth Defendant
MARGARET RUTH SANDERS (now O'Donnell)	Sixth Defendant
PATRICIA SANDERS (now Griechen)	Seventh Defendant
GARY SANDERS	Eighth Defendant
ROBYN SANDERS (now Cornell)	Ninth Defendant
LINDA SANDERS (now Ross)	Tenth Defendant

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2003
DATE OF JUDGMENT:	21 October 2003
CASE MAY BE CITED AS:	Boulton v Sanders (No 2)
MEDIUM NEUTRAL CITATION:	[2003] VSC 409

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Wills – Court – Ordered will – Application for leave dismissed – Costs – Whether costs should follow the event.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R C Wells	Stedman Cameron
For the First & Fifth Defendants	Mrs K Rees	Pearce Webster Dugdales
For the Sixth to Tenth Defendants	Ms C Sparke	T J Mulvaney & Co

HER HONOUR:

1. On 16 October 2003 the plaintiff’s application for leave to apply for an order under section 21 of the Wills Act 1997 (“the Act”) was dismissed and submissions were made by counsel as to the appropriate costs order to be made. These reasons should be read with the reasons for judgment delivered on that date (“the reasons”).[1]

   [1]See [2003] VSC 405.

1. Mr Wells, for the plaintiff, submitted that the costs of all parties should be borne out of the estate of Miss Sanders.   The effect of that order would be that the costs would initially be borne by Miss Sanders personally, but ultimately, assuming the 1997 will is proved, by the nine residuary beneficiaries who are the surviving nephews and nieces of Miss Sanders, all of whom are parties to the proceeding, although two were unrepresented.   He submitted that Miss Sanders’s assets were such that the payment of the costs out of her estate would not adversely affect her lifestyle.   That may well be so, although I have no information as to the likely amount of the costs.   However, as Byrne J pointed out in Hill v Hill (No 2)[2] :

.  .  .  in a case such as the present, the will-maker is still alive and entitled, so long as she lives, to enjoy her assets undiminished by the burden of paying the costs of those whose claims anticipate her demise.

While the assets of the will-maker in that case were considerably less than those of Miss Sanders, that does not appear to me to affect the principle there enunciated.

[2][2001] VSC 135 at [8]

1. Mr Wells pointed out that while his client would have benefited if the application had been successful, she was not the only person who would have benefited.

1. His principal submission was that there was a public benefit in the jurisdiction to make a statutory will for a person without testamentary capacity being invoked from time to time, and that if an order for costs were made against the plaintiff, this would discourage the initiation of proceedings in that jurisdiction.

1. Mrs Rees, for the first and fifth defendants, submitted that the costs should follow the event in the usual way.   The application had been brought essentially for the benefit of the plaintiff.   However, if the Court was not minded to make that order, then the costs should be borne by the estate of Miss Sanders, as submitted by Mr Wells.

1. The submissions of Ms Sparke, for the sixth to tenth defendants, were to the same effect.   As to the public interest, she submitted that it was always be possible for an independent administrator to consider whether to make an application under the legislation, and an independent administrator would always be entitled to costs out of the estate.

1. The only authority to which I was referred was the decision of Byrne J in Hill v Hill (No 2) [3], relating to the costs of the matter of Hill v Hill[4] .   There is no indication as to the costs orders made in the other authorities cited in the reasons, save that Mrs Rees, who had taken part in the case of Monger v Taylor[5] informed me that the order for costs in that case had formed one of the terms of a compromise, which was on the Court file, and tendered a copy of that document.

   [3]see fn 2.

   [4][2001] VSC 83.

   [5][2000] VSC 304.

1. Byrne J considered at some length various possible analogies on which an order could be based, given the absence of any guidance on the matter in the Act. He found the more apposite approach to be for the ordinary rule for contentious litigation to apply, namely that costs follow the event. As he said [6] one party was seeking a benefit, and the others were protecting their expected benefit from the estate.

   [6]at [9].

1. While the facts in the present case are not on all fours with those in Hill (No 2), I find on consideration of the judgment in that case and of the submissions put before me, no reason to depart from the ordinary principle.   Most litigation involves the risk of a costs order.   If successful in her application, the plaintiff would have received a substantial benefit over and above the legacy to which she would otherwise be entitled.   However, she was unsuccessful.

1. Having said that, I do not wish to suggest that I would regard the ordinary principle that costs follow the event as necessarily appropriate to every application made under section 21. I am concerned only with the matter which is before me.

1. Ms Sparke submitted that her clients’ costs should be paid on a solicitor-client basis.   However, having considered the circumstances on which she based that submission, I do not consider that they justify the making of an order in those terms.

1. For the reasons given, there will be an order that the plaintiff pay the costs of the defendants on a party-party basis.

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