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Coombes v Ward (No 2)

Coombes v Ward (No 2)

Case [2002] VSC 84 27 March 2002

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WANGARATTA

COMMERCIAL AND EQUITY DIVISION

No. 1300 of 2001

In the Matter of Part IV of the Administration and Probate Act 1958 and
In the Matter of the Will and Estate of May Roberts, deceased

Between:

JOHN JOSEPH COOMBES	Plaintiff
v
SANDRA JOY WARD (Who is sued as the executrix of the Will of the abovenamed deceased)	Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF JUDGMENT:	27 March 2002
CASE MAY BE CITED AS:	Coombes v Ward (No 2)
MEDIUM NEUTRAL CITATION:	[2002] VSC 84

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Costs: Testators family maintenance; application of plaintiff unsuccessful; order that proceedings be dismissed; application not made “frivolously, vexatiously or with no real prospect of success”; offer made by defendant in compromise of proceeding but not accepted by plaintiff; exercise of discretion; applicant frail and ill and supported by pension; size and nature of estate; no order made against plaintiff in favour of defendant or against defendant in favour of the plaintiff.

Administration and Probate Act 1958 s. 97(6)(7).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr William Gillies	Trivett Keating
For the Defendant	Mr Vincent Tallarida	Prior & Prior

HIS HONOUR:

On 21 March 2002 I delivered my judgment in this proceeding. Having reached the conclusion that May Roberts, deceased, did not have responsibility to make provision out of her estate for the proper maintenance and support of the plaintiff and that the discretion vested in the Court pursuant to s. 91(1) of the Administration and Probate Act 1958 did not arise for the Court to exercise in the circumstances of this case, I ordered that the proceeding of the plaintiff be dismissed.

Counsel for the defendant sought an order that the plaintiff pay the defendant’s costs of the proceeding or alternatively that from 12 October 2001 the plaintiff pay the defendant’s costs of the proceeding. In making the alternative application, counsel for the defendant informed the Court that on 12 October 2001 an offer had been made by the defendant to the plaintiff to compromise the proceeding, but the offer had not been accepted, in consequence, the proceeding went to trial and judgment. Counsel for the plaintiff conceded that on 12 October 2001 the defendant had made an offer to the plaintiff in compromise of the proceeding, which offer had not been accepted.

On 21 March 2001 I gave directions that each counsel furnish written submissions relevant to the question of costs in this proceeding.

I have now received the written submissions of counsel for each of the plaintiff and the defendant.

By his written submissions counsel for the defendant has informed the Court that on 12 October 2001 an offer was made on behalf of the defendant to the plaintiff in compromise of the proceeding, to pay him a small sum of money together with his costs of the proceeding but that such offer was not accepted by the plaintiff.

The Court’s general discretion as to costs is that vested in…

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 Coombes v Ward (No 2)

Details

AGLC: Coombes v Ward (No 2) [2002] VSC 84
Case: [2002] VSC 84
Decision Date: 27 March 2002

CaseChat Overview and Summary

In the matter of Coombes v Ward (No 2), the parties involved were Coombes, the plaintiff, and Ward, the defendant. The dispute centred on the issue of legal costs associated with a will dispute, specifically the testators' family maintenance. The case was heard in the Supreme Court of Victoria. The plaintiff, Coombes, sought an order for costs against the defendant, Ward, arguing that the proceedings were not frivolous, vexatious, or without a real prospect of success. Additionally, the defendant had made an offer to compromise the proceedings, which the plaintiff did not accept.

The primary legal issue the court had to decide was whether the plaintiff's application for costs was successful. This involved assessing whether the proceedings were conducted in a manner that warranted an order for costs and whether the defendant's offer to compromise the proceedings was relevant to the decision. The court also had to consider the factors outlined in the Administration and Probate Act 1958, particularly sections 97(6) and (7), which pertain to the discretion of the court in awarding costs.

The court held that the plaintiff's application for costs was unsuccessful. It was noted that while the proceedings were not frivolous, vexatious, or without a real prospect of success, the plaintiff did not accept a compromise offer made by the defendant. The court emphasised the importance of the defendant's offer in its decision-making process. Furthermore, the court took into account the plaintiff's health condition, frailty, and reliance on a pension, along with the size and nature of the estate. The court exercised its discretion and decided not to make any order for costs against either party.

As a result of the court's decision, the plaintiff's application for costs was dismissed. No order was made against the plaintiff in favour of the defendant or against the defendant in favour of the plaintiff. The court's ruling demonstrated its consideration of the various factors involved in determining costs in will disputes, particularly the offer of compromise and the circumstances of the parties.

Orders