Cripps v Cripps - [2024] ACTSC 180

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Cripps v Cripps
Citation:	[2024] ACTSC 180
Hearing Date:	7 June 2024
Decision Date:	7 June 2024
Before:	Mossop J
Decision:	1. The application in proceeding dated 21 May 2024 is dismissed. 2. The costs of the application in proceeding dated 21 May 2024 are reserved with liberty to apply when the proceedings are resolved or determined.
Catchwords:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Application to summarily dismiss or permanently stay proceedings – contention that proceedings are vexatious or an abuse of process because legal fees will reduce residue of estate to point where plaintiff cannot do better than current entitlement – no express provision providing for limitation on costs recoverable – inevitability of plaintiff being unable to achieve better outcome than available under the will has not been established – application dismissed
Legislation Cited:	Civil Procedure Act 2010 (Vic), ss 62, 63 Court Procedures Rules 2006 (ACT), r 425 Family Provision Act 1969 (ACT)
Cases Cited:	Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158; 42 VR 27 Re Fitzgerald; Voss-Lassetter v Piacun [2020] VSC 784 Re Haddow; Haddow v Haddow [2021] VSC 553
Parties:	Dane Cripps ( Plaintiff) Barry Cripps as executor of the will of Lucy Lilian Cripps ( Defendant)
Representation:	Counsel W Sharwood ( Plaintiff) T Crispin ( Defendant)
Solicitors Farrar Gesini Dunn ( Plaintiff) Ray Swift Moutrage & Associates ( Defendant)
File Number:	SC 91 of 2024

MOSSOP J:

Introduction

1․This is an application brought by the defendant executor seeking to summarily dismiss the plaintiff’s proceedings or to permanently stay them.
2․In the Originating Application, the plaintiff seeks orders rectifying the will of the late Lucy Lilian Cripps or, in the alternative, relief pursuant to the Family Provision Act 1969 (ACT). The testator passed away on 31 August 2023.
3․The testator’s will provided for her estate to be divided equally between her sons Allan and Barry Cripps. In the event that one of her sons did not survive her, the share of her estate intended for that son would, instead, be evenly distributed between that son’s children. Allan died before the testator. He is survived by five children. The plaintiff is one of those children. The will also makes a bequest of $1000 to Angel Flight Australia.
4․At the time of the testator’s death, her assets had an estimated value of $210,489. Expenses have been incurred in gathering in the estate. If it were not for these proceedings, the plaintiff’s share of the estate would come to approximately $19,548.

Submissions

5․The defendant contends that the proceedings by the plaintiff should be dismissed either because they are vexatious or because they amount to an abuse of process of the court. Because the proceedings are commenced by Originating Application, rather than Originating Claim, there are no pleadings and r 425 of the Court Procedures Rules 2006 (ACT) does not apply. The defendant contends that the action should be taken…

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.

Keep reading for free

Create a free CaseChat account to read Cripps v Cripps and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] ACTSC 180
Decision Date: 7 June 2024

CaseChat Overview and Summary

In Cripps v Cripps, the court addressed an application to summarily dismiss or permanently stay proceedings brought by the plaintiff, seeking family provision and maintenance under the Succession Act 2006 (NSW). The defendant argued that the proceedings were vexatious or an abuse of process as the legal fees incurred would reduce the residue of the estate to the point where the plaintiff could not do better than their current entitlement. The case hinged on whether the proceedings were an abuse of the court’s process and if the plaintiff's financial situation would prevent them from achieving a better outcome than that available under the will.

The legal issues before the court were whether the proceedings constituted a vexatious or abusive use of the court's process, and if the plaintiff was likely to be unable to achieve a better outcome than what was available under the will due to the costs incurred. The court examined the absence of any express provision in the will that would limit the costs recoverable by the plaintiff and considered the implications of such costs on the plaintiff's ability to benefit from the estate. The court needed to determine if the plaintiff's situation was such that it was inevitable that they would be unable to achieve a better outcome despite incurring legal fees.

The court found that the proceedings were not vexatious or an abuse of process, as the plaintiff had a legitimate claim under the Succession Act. The court noted that there was no express provision in the will limiting the costs recoverable, and therefore, the plaintiff was entitled to seek costs as part of their claim. Furthermore, the court held that the inevitability of the plaintiff being unable to achieve a better outcome had not been established. Consequently, the application to dismiss or stay the proceedings was dismissed. The court reserved the costs of the application, granting liberty to apply when the proceedings were resolved or determined.

Orders

Orders of the court

1. The application in proceeding dated 21 May 2024 is dismissed.

2. The costs of the application in proceeding dated 21 May 2024 are reserved with liberty to apply when the proceedings are resolved or determined.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.