Cartledge v Bryan (No 2) - [2023] VSC 436

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2022 08875

IN THE MATTER of the estate of GARY RICHARD CARTLEDGE, deceased

NICOLE MAREE HEUVERLING CARTLEDGE	Plaintiff
v
KAYE HELLEN BRYAN	Caveator

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions
DATE OF JUDGMENT:	28 July 2023
CASE MAY BE CITED AS:	Cartledge v Bryan (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 436

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COSTS – Estate litigation – Where caveator established prima facie case – Where plaintiff’s opposition to prima facie case fundamentally misconceived – Costs follow the event – Special circumstances warranting award of indemnity costs – Supreme Court Act 1986, s 24 – Supreme Court (General Civil Procedure) Rules 2015, O 63 – Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189; Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; Dale v Clayton Utz (No 3) [2013] VSC 593; Northern Territory v Sangare (2019) 265 CLR 164.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Peter Cahill
For the Caveator	Andrew Burnett	Petersen Westbrook Cameron

HIS HONOUR:

In this proceeding the plaintiff, who is an adult child of the deceased who died on 21 March 2022, seeks a grant of letters of administration upon intestacy in relation to the deceased’s estate. Kaye Bryan lodged a caveat in relation to the application on the basis that she claimed to be the deceased’s domestic partner at the time of his death. On 19 April 2023, I published reasons for judgment in which I held that the caveator had established a prima facie case in respect of her claim.[1]
[1]Cartledge v Bryan [2023] VSC 195 (the prima facie case judgment).

The parties have been unable to agree on the question of costs relating to the prima facie case judgment; these reasons for judgment concern that issue and should be read together with the prima facie case judgment. The caveator seeks an order that the plaintiff pay her costs on an indemnity basis, or alternatively on a standard basis, and relies upon an affidavit sworn by her solicitor on 3 May 2023. The plaintiff submits that the appropriate order is that costs be reserved.

The plaintiff’s principal contention as to why costs should be reserved was that, despite the caveator’s success in the prima facie case judgment, it was not appropriate at this stage of the proceeding to make an order for costs.

The plaintiff submitted that the caveator’s ‘application’ was in substance a preliminary issue as to her entitlement to continue with the proceeding and should be viewed as part of the ‘overall process’ of the litigation. The appropriate course was to reserve costs so that they could be determined at the conclusion of the proceeding. It was submitted that, depending on the final outcome of the proceeding, a costs order at this stage in the proceeding could result in an…

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 Cartledge v Bryan (No 2)

Details

AGLC: Cartledge v Bryan (No 2) [2023] VSC 436
Case: [2023] VSC 436
Decision Date: 28 July 2023

CaseChat Overview and Summary

The case of Cartledge v Bryan (No 2) involved the dispute over the costs in an estate litigation matter. The caveator, Bryan, established a prima facie case, while the plaintiff, Cartledge, opposed this case in a fundamentally misconceived manner. The court had to determine whether the costs should follow the event and if there were special circumstances warranting the award of indemnity costs. The legal issues centred around the interpretation of the relevant sections of the Supreme Court Act 1986 and the Supreme Court (General Civil Procedure) Rules 2015. The court also referred to several precedents, including Ugly Tribe Co Pty Ltd v Sikola, Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2), Dale v Clayton Utz (No 3), and Northern Territory v Sangare.

The court assessed whether the plaintiff's opposition to the caveator's prima facie case was fundamentally misconceived. It considered the Supreme Court Act 1986, particularly section 24, and the Supreme Court (General Civil Procedure) Rules 2015, specifically rule 63, to determine the appropriate costs order. The court found that the plaintiff's opposition was indeed fundamentally misconceived and that the caveator had established a prima facie case. The court also examined the special circumstances warranting the award of indemnity costs, taking into account the precedents set by the cases cited. Based on these factors, the court concluded that the costs should follow the event and that special circumstances warranted an indemnity costs order.

In light of the above, the court ruled in favour of the caveator, Bryan, awarding indemnity costs. The court's decision was based on the established prima facie case, the fundamentally misconceived opposition by the plaintiff, and the special circumstances identified in the case law. The final orders were that costs were to follow the event and that indemnity costs were to be awarded to the caveator.

Orders