Brito-Babapulle v Brito-Babapulle (No 2) - [2024] VSC 488

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 02419

IN THE MATTER of an Application under s 34(1)(b) and/or s 34(1)(c) of the Administration and Probate Act 1958, ss 41, 45, 48, 50 and 51 of the Trustee Act 1958 and Order 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 and the inherent jurisdiction of the Court

and

IN THE MATTER of the Will and Estate of MARY BEATRICE KAMALA BRITO-BABAPULLE, deceased

BETWEEN:

ASHAN COLIN BERNARD BRITO-BABAPULLE (in his capacity as one of the executors of the estate of the late Mary Beatrice Kamala Brito-Babapulle, deceased and personally)	Plaintiff
v
TANIA ASHANTI BRITO-BABAPULLE (in her capacity as one of the executors of the estate of the late Mary Beatrice Kamala Brito‑Babapulle, deceased)	Defendant

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22, 23 and 24 May 2024
DATE OF LAST SUBMISSIONS:	5 July 2024
DATE OF JUDGMENT:	19 August 2024
CASE MAY BE CITED AS:	Brito-Babapulle v Brito-Babapulle (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 488

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COSTS — Following removal of executor from office — Costs follow the event — claim of indemnity costs partially allowed due to defendant’s conduct prolonging hearing — No issue of principle.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R Shepherd	MST Lawyers
For the Defendant	The defendant was self-represented

HIS HONOUR:

Introduction

I delivered my reasons for judgment and made substantive orders in this matter on 31 May and 3 June 2024.[1] Pursuant to directions, the parties filed affidavit material and written submissions on the question of costs. They agreed that I should determine the question of costs on the papers.
[1]Brito-Babapulle v Brito-Babapulle [2024] VSC 281.

I have now determined the question of costs. I have decided to order that the defendant (Ms Brito) pay the plaintiff’s costs of and incidental to the proceeding, with payment to be deducted from the defendant’s share of the residuary estate. I have decided that the plaintiff’s costs of the last three days of the trial are payable by the defendant on an indemnity basis, but otherwise the standard basis applies. To the extent that the plaintiff has legal costs of and incidental to the proceeding that are not met by this order, he is permitted to recover those costs from the estate. He previously indicated that he was not seeking to recover any of his costs from the estate, but he is entitled to do so if he so chooses.

The parties’ positions

The parties both filed affidavits drawing my attention to items of correspondence relating to various offers they made and to the issue of costs.

In his counsel’s submissions, the plaintiff sought his costs on an indemnity basis, or alternatively partly on the standard basis and partly on indemnity basis, or in any event at least on the standard basis. He sought an order that those costs be paid out of the…

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.

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Details

Case: [2024] VSC 488
Decision Date: 19 August 2024

CaseChat Overview and Summary

The case of Brito-Babapulle v Brito-Babapulle (No 2) involved a dispute following the removal of an executor from their office. The proceedings were heard in the Supreme Court of Queensland. The central issue before the court was whether the defendant, who had successfully opposed the plaintiff’s application to remove the executor, should be ordered to pay the plaintiff’s costs associated with the removal proceedings, as well as indemnity costs for the defendant’s conduct during the hearing. The plaintiff sought to recover costs from the defendant, arguing that the defendant’s conduct had unnecessarily prolonged the hearing.

The court examined the principles governing costs in such proceedings, specifically focusing on whether the defendant's conduct warranted an award of indemnity costs. The court noted that indemnity costs are typically awarded when a party’s conduct is vexatious, oppressive, or an abuse of the court process. The court found that, while the defendant’s actions did not rise to the level of being vexatious or oppressive, they did contribute to the prolongation of the hearing. Consequently, the court decided that a partial indemnity cost award was appropriate to compensate for the additional time and resources expended due to the defendant’s conduct.

In its reasoning, the court emphasised that the award was not intended to set a broad principle but rather to address the specific circumstances of this case. The court balanced the need to discourage unnecessary prolongation of litigation with the understanding that the defendant’s actions, while not egregious, did contribute to the extended proceedings. The final orders included a partial indemnity costs award to the plaintiff, reflecting the court's determination that the defendant's conduct had indeed prolonged the hearing.

Orders