Cottrell v Miglic [No 2] - [2025] VSCA 177

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0032
S EAPCI 2024 0043

STEPHEN COTTRELL & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Appellants/Cross-respondents
v
LISA MIGLIC & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents/Cross-appellants
[NO 2]

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JUDGES:	McLEISH, LYONS and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	1 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 177
JUDGMENT APPEALED FROM:	Re Miglic [2024] VSC 20; Re Miglic [Nos 2 and 3] (Supreme Court of Victoria, Gorton J, 8 February 2024)

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COSTS – Appeal – Offer of compromise – Challenge to finding of mutual wills – Tracing claim – Trial judgment $60,000 in favour of appellants – Application for leave to appeal granted – Appeal dismissed – Offer by respondents to pay $350,000 inclusive of costs – Non-acceptance of offer – Mutual wills claim worth approximately $6.9 million – Tracing claim approximately $1.1 million – Onus on party seeking indemnity costs – Whether non-acceptance of offer unreasonable in all the circumstances – Not unreasonable for appellants not to accept offer – Appellants to pay respondents’ costs on standard basis – Supreme Court (General Civil Procedure) Rules 2015, r 26.12 – Hazeldene’s Chicken Farm Pty Ltd v WorkCover Authority (Vic) [No 2] (2005) 13 VR 435, applied.

TRUSTS AND ESTATES – Trustee’s indemnity – Administrator of deceased estate not taking part in appeal – Administrator seeking order for indemnity out of estate in respect of costs – No dispute before Court as to indemnity – No basis for identifying extent of indemnity – No extant or potential controversy – Not appropriate to make orders regarding administrator’s indemnity.

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Counsel
Appellants/Cross-respondents		Mr JP Moore KC with Mr P Reynolds
Respondents/Cross-appellants:		Mr P Collinson KC with Mr A Verspaandonk
Solicitors
Appellants/Cross-respondents:	WJ Gilbert & Co Lawyers
Respondents/Cross-appellants:	Rigby Cooke Lawyers

MCLEISH JA
LYONS JA
KENNY JA:

On 27 June 2025, the Court granted leave to appeal and to cross-appeal in this matter and dismissed both the appeal and the cross-appeal. The parties were invited to file short submissions as to costs. These reasons should be read along with the Court’s reasons for its substantive orders.[1]
[1]Cottrell v Miglic [2025] VSCA 145.
The parties are in agreement that the cross-appellants should pay the first, second and third cross-respondents’ costs of the cross appeal on the standard basis. We agree that is the appropriate order with respect to the cross-appeal.
The parties also agree that the appellants should pay the first and second respondents’ costs of the appeal, but differ as to the basis upon which those costs should be assessed. The first and second respondents seek their costs on the indemnity basis. We shall return to that matter. First, it is convenient to address the costs of Ms Kallweit, the administrator of the deceased estate, who is the third respondent and the fourth cross-respondent.
The administrator did not seek any order for payment of her own costs, and the other…

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 Cottrell v Miglic [No 2]

Details

AGLC: Cottrell v Miglic [No 2] [2025] VSCA 177
Case: [2025] VSCA 177
Decision Date: 1 August 2025

CaseChat Overview and Summary

The case of Cottrell v Miglic [No 2] involved the appellants, Cottrell, bringing an appeal against the respondents, Miglic, in relation to a dispute involving a challenge to mutual wills and a tracing claim. The trial judgment had ruled in favour of the appellants, awarding them $60,000. The respondents subsequently made an offer to settle the matter by paying $350,000, inclusive of costs, but the appellants declined this offer. The primary legal issues before the court were whether the appellants' refusal to accept the respondents' offer was unreasonable and whether the appellants should be held liable for the respondents' costs.

The court examined the relevant rules and precedents, particularly Supreme Court (General Civil Procedure) Rules 2015, r 26.12, and the case of Hazeldene’s Chicken Farm Pty Ltd v WorkCover Authority (Vic) [No 2] (2005) 13 VR 435. The court found that the appellants' decision not to accept the offer was not unreasonable, considering the substantial value of the mutual wills claim and the tracing claim. The court determined that the appellants were not obligated to accept the offer, as the onus was on the party seeking indemnity costs to demonstrate unreasonableness. Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondents' costs on a standard basis.

In summary, the court upheld the appellants' decision not to accept the respondents' offer, finding it not unreasonable in the circumstances. The appeal was dismissed, and the appellants were required to cover the respondents' costs. The court did not make any orders regarding the administrator's indemnity, as there was no extant or potential controversy in that regard.

Orders