| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2013 02482
IN THE MATTER of Part IV of the Administration and Probate Act 1958
-and -
IN THE MATTER of the will and estate of OLGA ADA BRIGGS, deceased
| GARRY GEORGE BRIGGS | Plaintiff |
| v | |
| SHARLENE MANTZ (who is sued as the executor of the will of the abovenamed deceased) | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 September 2014 |
DATE OF JUDGMENT: | 3 October 2014 |
CASE MAY BE CITED AS: | Briggs v Mantz (No 2) |
MEDIUM NEUTRAL CITATION: | [2014] VSC 487 |
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Practice and Procedure — Family provision — Costs of successful defendant — Whether to be no orders as to costs or paid by the plaintiff — Whether to be paid on a standard basis or an indemnity basis — Administration and Probate Act 1958, ss 97(6), (7)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Verspaandonk | Slater & Gordon |
| For the Defendant | Mr R Wells | McNab McNab & Starke |
HER HONOUR:
Introduction
In this proceeding, the plaintiff sought an order for further provision from the estate of his mother, Olga Ada Briggs (‘the deceased’), pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’). The estate was valued at trial at approximately $800,000, but estimated to be reduced by up to $200,000 in total legal costs if those costs were to be borne by the estate. The plaintiff, the only son of the deceased, was left a one-fifth share in the residuary estate, with the other four shares divided equally between his four children, the only grandchildren of the deceased. The relevant facts are set out in my judgment delivered on 22 August 2014.[1] The plaintiff was unsuccessful in his claim and his application was dismissed.[2]
[1]Briggs v Mantz [2014] VSC 281 (22 August 2014) [2]–[93].
[2]Ibid [157].
On 5 September 2014, the parties made submissions concerning the costs of the proceeding:
(a)The defendant sought an order that the plaintiff pay the defendant’s costs on an indemnity basis (assessed at $95,000) from either 31 May 2013 or 7 May 2014, and otherwise on the standard basis. The costs order sought against the plaintiff arises from three offers made to the plaintiff, the first on 6 March 2013, the second on 20 May 2013 and the third on 5 May 2014.[3]
(b)The plaintiff sought orders that each party bear their own costs of the proceeding. No evidence as to the plaintiff’s own costs of the proceeding was provided to the Court. Alternatively, the plaintiff submitted that if a costs order is made against him, it ought to be on the standard basis and not an indemnity basis.
[3]The trial commenced on 22 May 2014.
For the reasons that follow, I have determined that the plaintiff should pay the defendant’s costs on a party and party basis up to 31 March 2013, on a standard basis from 1 April 2013 to 31 May…
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- AGLC
- Briggs v Mantz (No 2) [2014] VSC 487
- Case
- [2014] VSC 487
- Decision Date
CaseChat Overview and Summary
The court was required to interpret and apply sections 97(6) and 97(7) of the Administration and Probate Act 1958. These sections deal with the costs of family provision applications and the basis on which those costs should be awarded. The court had to consider the principles of fairness and justice in making its decision, taking into account the respective positions of the parties and the outcome of the litigation. The court also had to consider the effect of the decision on future family provision applications and the potential impact on the administration of estates.
Justice Byrne held that, in the circumstances of this case, it was appropriate to make no orders as to costs. The court found that the application was brought without reasonable cause and that the outcome did not justify an award of costs against Briggs. The court also considered that the costs should not be awarded on an indemnity basis, as this would be disproportionate and unjust in the circumstances. The court noted that the principles of fairness and justice required a balanced approach, and that the decision should not be used as a precedent for future cases. The court's decision was based on the specific facts and circumstances of this case, and did not establish a broad legal principle.
No orders were made as to costs.
Orders
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Background
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