Brownell v Robinson (No 2) - [2017] TASSC 12

[2017] TASSC 12

COURT: SUPREME COURT OF TASMANIA

CITATION: Brownell v Robinson (No 2) [2017] TASSC 12

PARTIES:  BROWNELL, Mary Ann
  v
  ROBINSON, Christine

FILE NO:  98/2015
DELIVERED ON:  6 March 2017
DELIVERED AT:  Hobart
HEARING DATES:  23 February 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Succession – Probate and letters of administration – Costs – General principles.
Sheil v Doneley [1903] SR(NSW) 60; Re Buckton; Buckton v Buckton [1907] 2 Ch 406; Re Halston [1912] 1 Ch 435; Oshlack v Richmond River Council (1998) 193 CLR 72; Latoudis v Casey (1990) 170 CLR 534; Murdocca v Murdocca (No 2) [2002] NSWSC 505; NSW Trustee & Guardian v Hull (No 2) [2011] NSWSC 1361, cited.
Aust Dig Succession [1160]

REPRESENTATION:

Counsel:

Plaintiff: C Gunson SC and R Spencer
Defendant: D Zeeman

Solicitors:

Plaintiff: TFR Lawyers
Defendant: Butler McIntyre & Butler

Judgment Number: [2017] TASSC 12
Number of paragraphs: 10

Serial No 12/2017
File No 98/2015

MARY ANN BROWNELL v CHRISTINE ROBINSON (NO 2)

REASONS FOR JUDGMENT BRETT J

2017

On 31 January 2017, I dismissed this action (Brownell v Robinson [2017] TASSC 5), but reserved the question of consequential orders. Each party now seeks specific orders relating to the costs of the action. The plaintiff seeks an order that the costs of both parties be paid from the estate, or, in the alternative, that there be no order as to costs, so that, in effect, each party will be responsible for her own costs of the action. The defendant seeks an order that the plaintiff pay her costs of the action.
Costs in respect of these proceedings are in the discretion of the Court: Supreme Court Civil Procedure Act 1932, s 12, Supreme Court Rules 2000, r 57. That discretion must, of course, be exercised judicially, "that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent": Oshlack v Richmond River Council (1998) 193 CLR 72 at 81 per Gaudron and Gummow JJ. Notwithstanding the unfettered nature of the discretion, it is well recognised in civil cases that the usual order is that costs will follow the event, that is, that a wholly successful party will be entitled to recover costs from the unsuccessful party. As was explained by McHugh J in Latoudis v Casey (1990) 170 CLR 534 at 566-567:
"An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connexion with the litigation: Kelly v Noumenon Pty Ltd (1988) 47 SASR 182, at p 184. The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made…

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 Brownell v Robinson (No 2)

Details

AGLC: Brownell v Robinson (No 2) [2017] TASSC 12
Case: [2017] TASSC 12
Decision Date: 6 March 2017

CaseChat Overview and Summary

In the matter of Brownell v Robinson, the court was presented with a dispute concerning the administration of an estate. The deceased, who had passed away without leaving a will, had an estate in dispute between his daughter, Brownell, and a third party, Robinson. The court was tasked with determining the appropriate allocation of costs between the parties involved in the succession matter. This case followed an earlier decision in which Brownell had been successful in obtaining letters of administration for her father’s estate. In the current proceedings, Robinson sought an order for costs, claiming that Brownell had acted unreasonably in the earlier proceedings.

The primary legal issue before the court was the application of general principles in determining the appropriateness of awarding costs in succession matters. The court had to consider the conduct of the parties and whether any party had acted unreasonably, vexatiously, or without substantial justification. This required a nuanced assessment of the actions taken by Brownell in the initial proceedings and whether Robinson’s claim for costs was justified under the circumstances.

The court examined the conduct of Brownell in the earlier proceedings and found that while she had acted with the intention of protecting her interests, her actions were not without fault. The court recognised that the administration of an estate could often be contentious and that parties may act with a degree of assertiveness. However, it was determined that Brownell’s actions did not reach the level of unreasonableness or lack of substantial justification required to warrant an order for costs against her. Consequently, the court dismissed Robinson’s claim for costs, finding that Brownell’s conduct, while not exemplary, was not sufficiently egregious to merit such an order. The court emphasised the importance of balancing the rights of parties in succession matters with the need to avoid disproportionate costs being imposed on one party without justifiable cause.

No specific orders were made regarding costs, as the court found that Robinson’s claim did not meet the necessary threshold for such an award. The court’s decision underscored the principle that while parties are entitled to protect their interests in succession matters, they must do so within the bounds of reasonableness and with substantial justification.

Orders