Brockett v Shana
[2020] WASC 235
•22 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: BROCKETT -v- SHANA [2020] WASC 235
CORAM: MASTER SANDERSON
HEARD: ON THE PAPERS
DELIVERED : 22 JUNE 2020
PUBLISHED : 22 JUNE 2020
FILE NO/S: CIV 1227 of 2020
BETWEEN: FAYE BROCKETT
Applicant
AND
COLLEEN SHANA
Respondent
Catchwords:
Costs - Action settled and only issue costs - Failure of defendant to co-operate in administration of estate
Legislation:
Nil
Result:
Defendant to pay plaintiff's costs of the application
Category: B
Representation:
Counsel:
| Applicant | : | No appearance |
| Respondent | : | No appearance |
Solicitors:
| Applicant | : | Birman & Ride |
| Respondent | : | Macdonald Rudder |
Case(s) referred to in decision(s):
Nil
MASTER SANDERSON:
These reasons deal with a question of costs. The plaintiff began this action on 17 February 2020 seeking orders to appoint a real estate agent to facilitate the sale of a property in Hamersley.[1] The action was ultimately settled between the parties and the orders that I made for the sale were made by consent.[2] However the parties could not agree as to costs.
[1] Plaintiff's submissions on costs filed 19.5.2020 [1].
[2] Order of Master Sanderson 12 May 2020.
Raymond McCullough died on 15 July 2017. He made a will dated 7 February 2017 leaving half of the residue of his estate to the plaintiff and the other half divided between his four children, one of whom is the defendant. The Hamersley property was the primary asset of the estate.[3] There was a dispute about the validity of the will. That dispute was resolved by an agreement dated 11 July 2019 signed by the beneficiaries including the plaintiff and the defendant. The agreement contemplated the sale of the Hamersley property and the division of the estate in accordance with the terms of the will.[4]
[3] Plaintiff's submissions on costs filed 19.5.2020 [2].
[4] Plaintiff's submissions on costs filed 19.5.2020 [3].
The grant of letters of administration with the will annexed was made to the parties on 26 November 2019.[5] On 4 December 2019 the plaintiff's lawyers wrote to the defendant saying the next step was to sell the Hamersley property and asking if the defendant had any preference for a real estate agent. There was no response.[6] The plaintiff's solicitors wrote again on 4 December 2019, 12 December 2019 and 3 January 2020.[7] It is the plaintiff's position the defendant did not engage with the plaintiff or present her own proposal for sale. Rather, the plaintiff says, the defendant's approach from December 2019 was to obfuscate. The plaintiff points to the correspondence passing between the parties.[8]
[5] Plaintiff's submissions on costs filed 19.5.2020 [4].
[6] Plaintiff's submissions on costs filed 19.5.2020 [5].
[7] Plaintiff's submissions on costs filed 19.5.2020 [5] ‑ [7].
[8] Plaintiff's submissions on costs filed 19.5.2020 [8].
The plaintiff says the defendant eventually capitulated.[9] The plaintiff further says that it was a measure of the extent she was prepared to go to accommodate the defendant, that she eventually agreed on the appointment of joint agents – one nominated by the defendant, one nominated by the plaintiff.[10] The plaintiff also points to the lack of cooperation on the part of the defendant in relation to efforts to obtain a grant of letters of administration.[11] It is the plaintiff's position taken in the overall, the defendant has simply acted in a way that is unreasonable.
[9] Plaintiff's submissions on costs filed 19.5.2020 [10].
[10] Plaintiff's submissions on costs filed 19.5.2020 [12].
[11] Plaintiff's submissions on costs filed 19.5.2020 [13].
It is the defendant's position the plaintiff's action was premature and unnecessary.[12] The defendant points out the grant of letters of administration was made on 26 November 2019 and the application was brought on 17 February 2020. During that relatively brief period the defendant says she was talking to agents and obtaining market appraisals. She also gave consideration as to whether the Hamersley property needed repair.[13] Further the defendant says she was never opposed to selling the property and that is made plain by her correspondence.[14]
[12] Defendant's submissions on costs filed 19.5.2020 [3].
[13] Defendant's submissions on costs filed 19.5.2020 [4].
[14] Defendant's submissions on costs filed 19.5.2020 [6].
The defendant also says there was inadequate conferral before the issue of the application.[15] The defendant says the plaintiff's lawyers had a special responsibility to explain matters to the defendant given she was self‑represented. This responsibility, it is said, was heightened because the plaintiff's solicitors had acted for both parties on a non‑contentious application for a grant.[16] Furthermore, the defendant points to the fact if the application had been granted she would have had no role in the sale of the property meaning she was an administrator in name only.[17]
[15] Defendant's submissions on costs filed 19.5.2020 [10].
[16] Defendant's submissions on costs filed 19.5.2020 [11].
[17] Defendant's submissions on costs filed 19.5.2020 [12].
It is of prime importance in the administration of estates that executors or administrators cooperate to expedite the administration of deceased estates. As counsel for the plaintiff said in his written submissions, the defendant's conduct here was antithetical to the proper administration of the estate and her duties as administrator.[18] The evidence shows the defendant simply failed to engage with the plaintiff. When she did engage she made no real attempt to deal with the Hamersley property in a sensible straightforward fashion. I accept the plaintiff had no alternative but to bring this action. Furthermore, in the end the defendant had no choice but to capitulate. It should have been obvious to her from the first, if an action was brought it would succeed. I do not accept the delay was caused by actions taken by the defendant intended to benefit the estate.
[18] Plaintiff's submissions on costs filed 19.5.2020 [17].
The defendant should personally pay the plaintiff's costs of the application and bear her own costs. The defendant was warned such an order was a possibility. She chose to ignore that warning and she did so at her peril.
Accordingly, I make the following order:
1.The defendant pay the plaintiff's costs of the application to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson22 JUNE 2020
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