Cavanagh v Mace (No 2) - [2023] VSC 745

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2021 21341

MARGARET CATHERINE CAVANAGH	Plaintiff
v
CHRISTOPHER MARSHALL MACE	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions dated 23 November 2023 and 4 December 2023
DATE OF JUDGMENT:	13 December 2023
CASE MAY BE CITED AS:	Cavanagh v Mace (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 745

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COSTS – Estate litigation – Application for passing over of plaintiff and defendant and appointment of independent administrator – Application successful – Where plaintiff and defendant both seek indemnity costs – Indemnity costs awarded to the defendant – Plaintiff to bear her own costs - Banksia Securities Ltd v Insurance House Pty Ltd (Costs) [2020] VSC 234 - Northern Territory v Sangare (2019) 265 CLR 164 - Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Ms R Grayson Morison	Gauld & Co., Solicitors

HIS HONOUR:

At the conclusion of the trial of the proceeding on 16 November 2023, I made orders passing over the plaintiff and the defendant as executors of the estate of the deceased and appointed an independent administrator in their place. I delivered my reasons for judgment in the proceeding on 21 November 2023.[1] This judgment is in relation to costs.
[1]Cavanagh v Mace [2023] VSC 670 (the reasons for judgment).

The plaintiff seeks an order that her costs of and incidental to the proceeding be paid by the defendant on an indemnity, or alternatively, a standard basis. The defendant seeks an order that his costs of and incidental to the proceeding be paid by the plaintiff personally on an indemnity basis, without recourse to the assets of the deceased’s estate.

Unless otherwise expressly provided by an Act or by any rules made pursuant to the Supreme Court Act 1986, the Court has a general discretion in respect of costs, including in relation to the administration of estates and trusts.[2] The discretion is to be exercised judicially and in accordance with order 63 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules).
[2]Supreme Court Act 1986, s 24.

The usual rule as to costs is that a successful party to litigation is entitled to an award of costs in its favour, with the unsuccessful party bearing the liability for the costs of the unsuccessful litigation. In Northern Territory v Sangare, the High Court stated that:[3]
A guiding principle by reference to which the discretion is to be exercised – indeed, “one of the most, if not the most, important” principle – is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party. The application of that principle may be modified or displaced where there is conduct on…

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 Cavanagh v Mace (No 2)

Details

AGLC: Cavanagh v Mace (No 2) [2023] VSC 745
Case: [2023] VSC 745
Decision Date: 13 December 2023

CaseChat Overview and Summary

In the case of Cavanagh v Mace (No 2), the parties involved were Cavanagh and Mace, engaged in a dispute relating to estate litigation. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether Cavanagh should be passed over as an administrator of the estate and whether an independent administrator should be appointed instead. Additionally, the court had to determine whether indemnity costs should be awarded to either party.

The court examined the circumstances surrounding the estate and the conduct of the parties. It considered whether the actions of Cavanagh warranted her being passed over as an administrator and whether the appointment of an independent administrator would be in the best interests of the estate. Furthermore, the court assessed whether indemnity costs should be awarded to either party, taking into account the relevant legal principles and authorities.

In its judgment, the court found that the actions of Cavanagh justified her being passed over as an administrator of the estate. The court concluded that an independent administrator should be appointed to manage the estate more effectively. Regarding the issue of indemnity costs, the court awarded indemnity costs to Mace, the defendant, and ordered Cavanagh, the plaintiff, to bear her own costs. The court relied on the principles established in Banksia Securities Ltd v Insurance House Pty Ltd, Northern Territory v Sangare, and Ugly Tribe Co Pty Ltd v Sikola to reach its decision.

As a result of the court's judgment, Cavanagh was passed over as an administrator, and an independent administrator was appointed to manage the estate. Additionally, Mace was awarded indemnity costs, while Cavanagh was ordered to bear her own costs. The court's decision provided clarity on the allocation of costs in estate litigation and the circumstances under which indemnity costs may be awarded.

Orders