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Briggs v Mantz (No 2)

Briggs v Mantz (No 2)

Case [2014] VSC 487 3 October 2014

Costs

Administration and Probate Act 1958

Succession Law

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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…

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 Briggs v Mantz (No 2)

Details

AGLC: Briggs v Mantz (No 2) [2014] VSC 487
Case: [2014] VSC 487
Decision Date: 3 October 2014

CaseChat Overview and Summary

The appeal, heard in the Supreme Court of Victoria, involved Briggs, the administrator of the estate of a deceased man, who sought to challenge a family provision order made in favour of the deceased's son, Mantz. The dispute centred around the costs incurred by Mantz in successfully defending the application, and whether those costs should be paid by Briggs or Mantz, and on what basis. The matter was heard by Justice Byrne, who had to determine whether the court should make no orders as to costs or whether they should be paid by the plaintiff. If the latter, the court also had to determine whether the costs should be paid on a standard basis or an indemnity basis.

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