Clark v Equity Trustees Limited (Ruling)
[2012] VCC 2185
•12 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
FAMILY PROPERTY DIVISION
Case No. CI-11-01071
IN THE MATTER OF PART IV of the Administration and Probate Act 1958
-and-
IN THE MATTER of the Estate of RUTH MAREE CLARK, deceased
BETWEEN
| MATHEW GLENISTER BLAKE CLARK (who brings this proceeding by his Administrator, STATE TRUSTEES LIMITED) | Plaintiff |
| v | |
| EQUITY TRUSTEES LIMITED (who is served as the Executor of the State of RUTH MAREE CLARK, deceased) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2012 | |
DATE OF RULING: | 12 June 2012 | |
CASE MAY BE CITED AS: | Clark v Equity Trustees Limited (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2185 | |
RULING
---
SUBJECT: PRACTICE AND PROCEDURE
CATCHWORDS: Originating Motion – claim made pursuant to Administration and Probate Act 1958 – plaintiff the son of the deceased – unable to demonstrate need – application to withdraw the proceeding – application for costs against the defendant – whether any basis for the application – necessity to approve a compromise of the plaintiff's claim
LEGISLATION: Administration of Probate Act 1958
RULING: application for costs refused. Compromise of the plaintiff’s claim approved
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C McOmish | State Trustees Limited |
| For the Defendant | Ms C Sparke | Fischer McCrae |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 11 March 2011, the plaintiff sought further provision from the estate of the deceased. The plaintiff is the son of the deceased.
2 Ms C McOmish of counsel appeared for the defendant, and Ms C Sparke of counsel appeared for the defendant.
3 The issue which arises for my determination is whether the defendant should pay the plaintiff's costs. The plaintiff now wishes to withdraw the proceeding, but says that the conduct of the defendant, in being allegedly recalcitrant in consenting to the withdrawal, should expose the defendant to the payment of the plaintiff's costs.
4 The plaintiff relied upon an affidavit of Ms Jenny Martelli, solicitor with State Trustees Limited, sworn 5 June 2012. The defendant relied upon an affidavit of Ms Angela Cursio, solicitor with Fischer McCrae.
The Facts
5 The relevant facts need only be stated briefly:
· The plaintiff is the son of the deceased. He is in a parlous state of health. He has a life expectancy which can be measured in a matter of two years or less.
· The deceased died on 27 June 2010. By her Will, she appointed the defendant as executor and trustee.
· The defendant obtained a grant of probate on 16 September 2010.
· The plaintiff is the only child of the deceased. His affairs are administered by the State Trustees Limited.
· The Originating Motion was filed on 11 March 2011, and within the six months required by the Administration and Probate Act 1958. It was subsequently served on the defendant by letter dated 16 March 2011.
· The defendant filed an Appearance on 24 March 2011.
· State Trustees Limited obtained a needs report prepared by Arnica Consultancy Services on 20 September 2011.
· State Trustees Limited engaged counsel to advise on whether there was merit in the plaintiff's claim. It received counsel's advice on 1 December 2011. Counsel advised that the plaintiff’s proceeding lacked merit and should be withdrawn.
· Subsequently, Ms Martelli wrote a letter to Fischer McCrae on 1 December 2011 offering to resolve the proceeding by the plaintiff withdrawing it and having it costs paid by the defendant out of the deceased's estate.
· It is clear from the substance of the affidavits of Ms Martelli and Ms Cursio that there was correspondence passing between both solicitors.
6 The proceeding was listed before me in a directions list on 7 June 2012. Ms McOmish informed me that the defendant had given its consent to the plaintiff withdrawing his proceeding, but would not pay the plaintiff's costs. Ms Sparke informed me that the defendant indeed gave such consent, but submitted that there was no basis upon which the defendant should be liable for the plaintiff's costs.
7 By e-mail later on 7 June 2012, Ms Spark informed me that the defendant did not make application for its cost to be paid by the plaintiff upon the plaintiff withdrawing the proceeding.
The Application
8 The plaintiff's application is refused. Whilst I can understand the anxiety on the part of the State Trustees Limited to act in the interests of the plaintiff by filing the Originating Motion within time, it could have, and should have, protected the interests of the plaintiff by filing the Originating Motion which would have had the effect of stopping time running against the plaintiff. However, it should have held onto the Originating Motion until it had received counsel's advice.
9 Rule 5.12(1) provides that an Originating Motion shall be valid for service for one year after the day it is filed. In this case, it means that the State Trustees Limited could have held onto the Originating Motion and not served it until 11 March 2012. It obtained counsel's advice on 1 December 2011, which was the trigger for its decision to resolve the proceeding. The provision of all of the evidence upon which counsel’s advice was based was in the possession of State Trustees Limited by 1 December 2011.
10 The foregoing would have obviated the plaintiff finding himself in an embarrassing situation of having a proceeding on foot which lacked merit.
11 I have carefully read the affidavit sworn by Ms Martelli and the affidavit in response sworn by Ms Cursio. Whilst there is some difference between them in what they have sworn to, none of it is particularly material.
12 I think this application needs to be determined on first principles, that is, the plaintiff should not have commenced the proceeding or served it until he was in a position to know whether his claim had merit.
13 At all material times the plaintiff was in control of the decision (albeit made for him) to commence and prosecute the proceeding and to decide whether it should be withdrawn. To attempt to sheet home some responsibility to the defendant, I think, is untenable.
Compromise
14 In the course of the submissions made by Ms McOmish, she submitted that given the material is before me, and also on the basis of her opinion as counsel who advised the plaintiff on the merits of his claim, that there was in fact no merit in his claim and that it should be compromised by the plaintiff withdrawing his claim.
15 I have now read the material exhibited to the affidavit of Ms Martelli. I am in little doubt that because of the plaintiff’s state of parlous health and the provision made for him by the deceased, that he cannot establish need. I am fortified in reaching that conclusion because of the well-considered advice given by Ms McOmish.
16 I have no hesitation in approving the compromise of the plaintiff's claim that it should be withdrawn.
Orders
17 The orders I will make are – firstly, that the plaintiff's application for costs is refused; and, secondly, that the plaintiff's application for compromise of the proceeding is approved.
18 I will now ask counsel for the plaintiff to prepare the relevant order and to present to me for signature.
---
0
0
0