D'Unienville v Sakalo [No 3] - [2014] WASC 252

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: D'UNIENVILLE -v- SAKALO [No 3] [2014] WASC 252

CORAM: EM HEENAN J

HEARD: 31 MARCH 2014

DELIVERED : 31 MARCH 2014

PUBLISHED : 16 JULY 2014

FILE NO/S: CIV 3168 of 2011

MATTER :The estate of LORELLE OLGA MARRIER D'UNIENVILLE, late of St Michael's Nursing Home, Walsley Street, North Perth in the State of Western Australia, Business Woman, deceased

BETWEEN: MARIETTE IRENE PAULE MARRIER D'UNIENVILLE
Plaintiff
AND
DR ALLA SAKALO
First Defendant
DAVID PAUL DONALDSON
ANDREW JAMES HARLER
Second Defendants
ANDREW JAMES HARLER
VALERIE JOAN SMITH
JOY TAYLOR
ROSS SIMEON SMITH
SHENTON PARK DOG HOME
CAT HAVEN
ALEXANDER GEORGE VILLANOVA
EDWARD ANTHONY VILLANOVA
PAUL ARMSTRONG
BERTRAM JAMES HARLER (by his guardian ad litem STEPHEN GRANT HARLER)
Third Defendants
DR ALLA SAKALO
JOY TAYLOR
VALERIE JOAN SMITH
ROYAL SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS INC
BERTRAM JAMES HARLER (by his guardian ad litem STEPHEN GRANT HARLER)
LAUREN ROSE MADASCI
MIA ELIZABETH HARLER
Fourth Defendants
BERTRAM JAMES HARLER (by his guardian ad litem STEPHEN GRANT HARLER)
Fifth Defendant

Catchwords:

Probate in solemn form - Costs of unsuccessful applicant for proof of alleged informal will - Probate granted of earlier formal will

Legislation:

Nil

Result:

Costs of unsuccessful applicant to be paid out of the estate, such costs to be taxed, if not agreed

Category: B

Representation:

Counsel:

Plaintiff:     No appearance
First Defendant              :     No appearance
Second Defendants        :     Mr D Markovich
Third Defendants           :     Mr D T McCashney
Fourth Defendants         :     No appearance
FifthDefendant             :     No appearance

Solicitors:

Plaintiff:     K G Sorensen
First Defendant              :     Murfett Legal
Second Defendants        :     Murfett Legal
Third Defendants           :     Margaret River Law
Fourth Defendants         :     Lavan Legal
FifthDefendant             :     Kott Gunning

Case(s) referred to in judgment(s):

Nil

EM HEENAN J: In the judgment and orders in this action, which were entered on 20 December 2013, I directed by [11] that the first‑named third defendant, Andrew James Harler, have liberty to apply, on notice to the other parties, for an order that his taxed costs of the proceedings be paid out of the estate. The application now before that court is by Mr Andrew James Harler, pursuant to the liberty to apply, seeking an order that his taxed costs be paid out of the estate.
The court has been notified that the plaintiff and the first named fourth defendant and the fifth defendant have no wish to appear or be heard on this application and will abide by the decision of the court. However, the first-named second defendant, David Paul Donaldson, has appeared by counsel to oppose any order for costs being made or to limit any costs which might be recovered by Mr Harler if an order were to be made. The reasons for those contentions are set out in written submissions filed by counsel for Mr Donaldson.
Essentially, the controversy concerns the role of Mr Andrew James Harler in the litigation. As has been said, he is a beneficiary, as a substantial legatee, under the will of the deceased, made 29 July 2006, which is the will that was proved. He was also named as the executor in an alleged informal will, dated 22 December 2007, which, in addition, named his infant son, Bertram Charles Harler, who later appeared in this proceedings by his guardian ad litem, the fifth defendant, as residuary beneficiary.
Mr Andrew Harler was named in the proceedings twice as the second‑named second defendant, representing his status as legatee under the will of 2006. I leave aside the question of whether or not that was a proper joinder or sufficient to bind him in all interests, a question which need not be pursued now or later. Mr Andrew Harler was also named as the first‑named third defendant, representing his interest as the named executor in the alleged will of 22 December 2007.
Mr Harler entered an appearance in both capacities and filed defences and counterclaims. His position on the pleadings was that the last valid will of the deceased was the will dated 22 December 2007, which named him as executor, provided for other testamentary dispositions, and then identified his son as the sole residuary beneficiary.
As the proceedings commenced and were continued, Mr Andrew Harler, through his solicitors, took appropriate action to advance the interests which I have just identified. However, after the matter had been entered for trial, and indeed not long before the trial was listed for hearing, he notified the court through his solicitors that he no longer intended to pursue either of his counterclaims nor to present any defence in either capacity. I emphasise that he did not seek to discontinue his counterclaims nor to abandon his defences. His position was simply that he would take no active part in the proceedings.
One of the consequences of this decision by Mr Andrew Harler was that there was then no-one before the court who was seeking to propound the alleged informal will of 22 December 2007, including, as it did, the residuary bequest to the infant, Bertram James Harler, which, on any account, would be a significant disposition if valid. For reasons which were canvassed on an earlier occasion, I gave directions before the trial, the effect of which were to require some person or body to take a position in relation to the alleged informal will of 22 December 2007, on behalf of the infant. In due course, his uncle came forward and acted as guardian ad litem, as fifth defendant, as already described.
In the absence of a withdrawal of that claim, that is of attempt to prove the alleged will of 22 December 2007 which would only have been done with the benefit of independent counsel's opinion because of the interest of the infant, it was essential for the disposition of this litigation for the court to consider the validity of the alleged informal will of 22 December 2007. In the events which happened, the trial proceeded on the basis that that alleged will was being propounded by the fifth defendant. Mr Andrew James Harler was called as a witness in the trial generally and was cross-examined, although he did not present any case on his own behalf.
For reasons which I delivered on 20 December 2013, I was satisfied that the alleged informal will of 22 December 2007 had not been proved to have been valid and that the last valid testament of the deceased was the will of 29 July 2006. I recited the evidence leading to that conclusion in those reasons and it is enough to say that, notwithstanding the conclusion which I reached, there was, in my view, always a plausible case that the alleged informal will of 22 December 2007 might have been the last valid testament of the deceased. In the end, I was satisfied that it was not, but it was not a baseless or fanciful claim and it was necessary for it to have been pursued.
At the heart of the submissions in opposition to the proposed order of costs is the contention that, by following the course which Mr Andrew James Harler did, that is of commencing and pursuing his counterclaim and then announcing at a relatively late stage that he did not wish to pursue it or to present a defence, which gave rise to the necessity to bring in the fifth defendant, there has been a duplication of effort and expense. I accept that there may have been a degree of duplication of effort and expense, but I am satisfied that Mr Andrew James Harler was under no obligation to continue with his defence or counterclaim and that it was a responsible decision made by him to take the position which he did.
That this, in due turn, necessitated the fifth defendant being joined as guardian of the infant residual beneficiary, Steven Harler, under that alleged will, is not a reason, in my view, to deprive Andrew Harler of his costs. Those consequences are due to the way in which the alleged will was framed and to the plausibility conferred on that document by the actions of the testatrix.
This entire litigation seems to have been due to a certain degree of irresolution by the deceased, and attempts which she made to keep various people, including members of the family, attentive to herself and her wishes. In my view, the costs of all the parties affected should be met from the estate.
Accordingly, I will order that the costs of Andrew James Harler, in his capacity as the first-named third defendant, should be paid out of the estate, such costs to be taxed, if not agreed.