Dawson v Darrell Charles Jackman as Executor of the Estate of Herbert Arthur George Jackman (dec)
[2011] WASC 242 (S)
•13 SEPTEMBER 2011
DAWSON -v- DARRELL CHARLES JACKMAN as Executor of the Estate of HERBERT ARTHUR GEORGE JACKMAN (dec) [2011] WASC 242 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 242 (S) | |
| Case No: | CIV:1099/2008 | 4 JULY 2011 | |
| Coram: | MASTER SANDERSON | 13/09/11 | |
| 8/12/11 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | No order as to costs | ||
| B | |||
| PDF Version |
| Parties: | GLORIA ELSIE DAWSON DARRELL CHARLES JACKMAN as Executor of the Estate of HERBERT ARTHUR GEORGE JACKMAN (dec) DARRELL CHARLES JACKMAN |
Catchwords: | Inheritance (Family and Defendants Provision) Act 1972 (WA) Costs of contested proceeding Turns on own facts |
Legislation: | Nil |
Case References: | Dawson v Darrell Charles Jackman as Executor of the Estate of Herbert Arthur George Jackman (dec) [2011] WASC 242 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 8 DECEMBER 2011 FILE NO/S : CIV 1099 of 2008 BETWEEN : GLORIA ELSIE DAWSON
- Plaintiff
AND
DARRELL CHARLES JACKMAN as Executor of the Estate of HERBERT ARTHUR GEORGE JACKMAN (dec)
First Defendant
DARRELL CHARLES JACKMAN
Second Defendant
Catchwords:
Inheritance (Family and Defendants Provision) Act 1972 (WA) - Costs of contested proceeding - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
No order as to costs
Category: B
Representation:
Counsel:
Plaintiff : Mr P N Bevilacqua
First Defendant : Mr I A Morrison
Second Defendant : Mr I A Morrison
Solicitors:
Plaintiff : Thompson Legal Pty Ltd
First Defendant : Bradley Bayly Legal
Second Defendant : Bradley Bayly Legal
Case(s) referred to in judgment(s):
Dawson v Darrell Charles Jackman as Executor of the Estate of Herbert Arthur George Jackman (dec) [2011] WASC 242
(Page 3)
1 MASTER SANDERSON: This decision deals with the question of costs. The plaintiff's application for further provision to her from the estate of the deceased was successful. I ordered the only significant asset in the estate, the lease on a beach shack at Cheynes Beach be transferred to her. The only remaining asset of the estate is approximately $3,800 in cash. That will go nowhere near covering the substantial legal costs incurred by both parties.
2 It is the plaintiff's position the second defendant ought pay the plaintiff's costs. The plaintiff acknowledges the starting point is where parties have acted reasonably in either pressing or resisting a claim there will be an order the costs of all parties be paid out of the estate. The plaintiff maintains the second defendant has not acted reasonably.
3 The plaintiff says the second defendant contested the issue as to whether or not the plaintiff was in a de facto relationship with the deceased. This issue was not conceded until the day of the first hearing on 12 August 2009. As I noted in my reasons it was clear from the evidence the plaintiff and the deceased were in a de facto relationship; there was no evidence to the contrary. The plaintiff submits this point should have been conceded.
4 Second the plaintiff says it was unreasonable for the second defendant to contest the value of the only significant asset in the estate; the lease on the Cheynes Beach property. The plaintiff submits as the second defendant did not call any evidence to challenge the valuation evidence put forward by the plaintiff it was unreasonable for the second defendant not to have accepted the plaintiff's valuation.
5 Further, when the valuer Mr Rae did give evidence no attempt was made to challenge his evidence in any material way. Thus it was said the calling of Mr Rae was unnecessary, increased the costs of all parties and amounted to unreasonable action on the part of the second defendant.
6 As was the case at trial the first and second defendants with respect to the submissions on costs were represented by the same firm of solicitors and by the same counsel. It is the defendants position there should be an order the costs of all parties be paid out of the estate on a full indemnity basis. To facilitate this counsel submits there should be a reconsideration of the order the lease on the Cheynes Beach property be transferred to the plaintiff and in its place it should be ordered the lease be sold and the costs paid out of the proceeds of sale.
(Page 4)
7 The defendants say they acted reasonably in all the circumstances. Moreover, they point to the fact it was the efforts of Mr Jackman (presumably in his capacity as executor of the estate of the deceased) which resulted in the new lease over the Cheynes Beach property being granted on 27 October 2010. As counsel points out the grant of a new lease 'was not a foregone conclusion'. Furthermore, the defendants say the plaintiff's actions in bringing the matter on in August 2009 when there was no certainty a new lease would be granted and presumably there would have been no value in the estate was inappropriate. By implication it is submitted the plaintiff acted unreasonably.
8 Counsel refers to an offer made by the second defendant to the plaintiff and a counteroffer made by the plaintiff to the second defendant. With respect both offers were well wide of the mark and in my view do not influence the position one way or the other.
9 I am not satisfied either party acted unreasonably in this matter. There was considerable uncertainty as to the proper value of the Cheynes Beach lease. Mr Rae in his evidence was able to put the matter to rest but given the unique nature of the asset it was not unreasonable for the second defendant to take the opportunity to test Mr Rae's evidence. In my view a cross-examination was conducted in a careful and reasoned way. No criticism can be directed at the second defendant in this respect. The mere fact the application was opposed and the opposition was unsuccessful does not make that opposition unreasonable. I see no basis for ordering costs against either the first or second defendant.
10 In the judgment handed down in this matter I explained why it was I thought the lease of the Cheynes Beach property should go to the plaintiff: Dawson v Darrell Charles Jackman as Executor of the Estate of Herbert Arthur George Jackman (dec) [2011] WASC 242. I considered the possibility of ordering the sale of that property and distributing the proceeds. In my view that was not the proper order to make. To now order the sale of the property and the costs of all parties paid out of the proceeds of sale on an indemnity basis would entirely undermine the conclusion I reached. I am not satisfied there should be any variation to the orders I made nor am I satisfied there should be a costs order in the form proposed by the defendants.
11 In the end I am satisfied there should be no order as to costs. I appreciate such an order is unusual in a case such as this. But this is an unusual case. The only asset in the estate is the Cheynes Beach lease. That property should go to the plaintiff. There is then no way a costs
(Page 5)
- order can be made with respect to the estate which will allow for the lease to be passed to the plaintiff. I am therefore satisfied there should be no order as to costs.
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