De Campo v Michael Colin Dawson as executor of the estate of Rosina Gisella De Campo
[2019] WASC 233
•2 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DE CAMPO -v- MICHAEL COLIN DAWSON as executor of the estate of ROSINA GISELLA DE CAMPO [2019] WASC 233
CORAM: ALLANSON J
HEARD: ON THE PAPERS
PUBLISHED : 2 AUGUST 2019
FILE NO/S: CIV 1817 of 2016
BETWEEN: ROSANNA DE CAMPO
Plaintiff
AND
MICHAEL COLIN DAWSON as executor of the estate of ROSINA GISELLA DE CAMPO
First Defendant
GEROLAMO DE CAMPO
Second Defendant
Catchwords:
Costs - Where adjournment on first day of trial - Where matter did not later proceed to determination - Whether plaintiff should pay costs of adjournment - Whether there should be any other order for costs
Legislation:
Nil
Result:
Plaintiff to pay costs thrown away by reason of adjournment of trial
No other order as to costs
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Fletcher Law |
| First Defendant | : | Dawson Davies |
| Second Defendant | : | Valenti Lawyers |
Case(s) referred to in decision(s):
De Campo v De Campo [2018] WASC 351
Lafferty v Waterton [2016] WASCA 183
Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84
Re Western Australian Planning Commission; Ex Parte Solomon [2010] WASCA 236 (S)
Russell v Lee [No 2] [2018] WASC 246
ALLANSON J:
The background to these reasons is conveniently summarised in the submissions filed on behalf of the plaintiff.
On 23 July 2015, the plaintiff commenced proceedings CIV 2139 of 2015. This included two claims: what has become to be known as the Compromise Action and a claim under the Family Provision Act 1972 (WA).
In the Compromise Action, the plaintiff sought to enforce an agreement reached between the plaintiff and the second defendant that the deceased's estate would be distributed between them otherwise than in accordance with the Will.
On 18 September 2015, as a consequence of objection being raised by the defendants to the mode by which the Family Provision Act claim had been commenced, that part of the claim became the subject of an Originating Summons filed with the court in action number CIV 2497 of 2015 (Family Provision Action).
On 18 May 2016, the plaintiff commenced action CIV 1817 of 2016 (Ademption Action).
In the Ademption Action, the plaintiff relied upon the equitable presumption (or rule) against double portions to seek a declaration that the deceased's gift of the Farming Property to the second defendant in 2011 adeemed pro tanto the bequest to the second defendant of the Bakery Property.
On 16 November 2018, after a contested trial, judgment was given in favour of the plaintiff in the Compromise Action.
On 31 July 2019, the Family Provision Action and the Ademption Action were dismissed by consent, with costs to be determined on the papers.
I refer also to my reasons in the compromise action: De Campo v De Campo [2018] WASC 351, where I set out the relationship between the parties and the subject matter of the various claims.
The plaintiff submitted that the court could not, on the material now before the court, find that either party was almost certain to have succeeded in this action, or in the Family Provision Action.
The plaintiff further submitted that she acted reasonably in commencing the Ademption Action before the determination of the Compromise Action. On that basis, the plaintiff submitted that there should be no order as to costs.[1]
[1] Referring to Russell v Lee [No 2] [2018] WASC 246 at [11] ‑ [12]; Re Western Australian Planning Commission; Ex Parte Solomon [2010] WASCA 236 (S) at [9].
The second defendant (first defendant in the Compromise Action) submitted that he should not bear the costs of taking the Ademption Action to trial when it was only adjourned on the first day of trial as a result of the conduct of the plaintiff.
The costs application, in my opinion, raises two separate questions: should the plaintiff be liable for the costs thrown away by reason of the adjournment of the trial of the Ademption Action, particularly in the light of the later decision to prioritise the Compromise Action which resolved all matters; and should the plaintiff be liable for the costs of the Ademption Action, other than those thrown away by reason of the adjournment.
The costs thrown away
It is not in dispute that on the night before the first day set down for trial of the Ademption Action, the solicitors for the plaintiff wrote to the executor regarding documents going to the capacity of the deceased. The plaintiff proposed that the defendants agree that should the plaintiff proceed, they would not later raise Anshun estoppel or abuse of process were the plaintiff to commence further proceedings alleging the deceased lacked capacity to transfer the Bindoon Property. Alternatively, the plaintiff sought an adjournment.
The second defendant did not oppose the adjournment but wished to reserve his position on the costs thrown away by reason of the adjournment.
As I set out in my reasons in the Compromise Action, it was in November 2013 that the plaintiff first asserted that her mother may have been suffering from dementia at the time she transferred the Bindoon Property to the second defendant. By email dated 6 November 2013, the plaintiff requested that the executor make no distribution of the estate until she could meet with the second defendant to see if the issues regarding the estate could be resolved.
The evidence in this application shows that Fletcher Law (the plaintiff's solicitors in the Compromise Action and the Family Provision Action) sought copies of the deceased's medical records in November 2016 and February 2017.[2]
[2] Affidavit of Tara Louise Connolly, sworn 1 April 2019, TCL 25, TCL 27.
The plaintiff again raised the question of the deceased's capacity very late in the proceedings. At the hearing before Smith J on 6 March 2013, counsel for the plaintiff referred to subpoenas issued to medical facilities that were returned on 31 January 2018. But the question of the deceased's capacity seems to have been a live issue for the plaintiff for the preceding four years.
The plaintiff did not bring any proceedings to challenge the deceased's capacity. Following the adjournment, the plaintiff decided that she should pursue the Compromise Action in priority to the others. That decision, in my opinion, was the most practical way to deal with these actions. Ultimately, it made the determination of the Ademption Action unnecessary.
In these circumstances, in my opinion, the plaintiff should pay the second defendant's costs thrown away by reason of the adjournment of the trial of the ademption proceedings in March 2018. The adjournment was attributable to the conduct of the plaintiff.
The costs of the action generally
Since the writ in the Compromise Action was filed on 23 July 2015, the plaintiff commenced the Family Provision Action in September 2015, an application for pre-action discovery on 30 October 2015, and the Ademption Action on 18 May 2016.
When these matters first came before me, the plaintiff's position was that the Compromise Action should be determined first. Before then, it seems to have been a position accepted between the parties that the Ademption Action would proceed first.
On 18 April 2018, counsel for the plaintiff submitted that the Ademption Action could not proceed to a hearing for various reasons, including the need to further investigate the deceased's capacity and the possible conflict of interest of the executor.
Counsel further submitted that, in any event, the Ademption Action would not quiet all of the disputes between the parties, however it was resolved. The Compromise Action, should it go the way of the plaintiff, would put an end to all of the actions.
If the Compromise Action had been determined in favour of the defendant, there were no common issues of fact or law which would have raised questions of issue estoppel or abuse of process to prevent the plaintiff from proceeding with the ademption claim. But it was resolved in favour of the plaintiff, and there was no longer any reason to pursue the other actions.
The general principles regarding costs, where a matter has not been determined on its merits, were stated by the Court of Appeal in Lafferty v Waterton:
It is trite law that the court has a very wide discretion as to costs, limited only by the requirement that it be exercised judicially. The general rule is that the successful party is entitled to an order for its costs. That is because ordinarily fairness requires that a party who has unjustifiably brought the other party before the court, or who has unjustifiably resisted a claim to which the other party is entitled, should have to meet the costs that have been incurred by the other party.
The general rule, however, is based upon the identification of the successful party by a hearing on the merits. In cases where the matter is settled without a determination on the merits the court is deprived of the factor that will usually determine how the discretion as to costs is to be exercised. As McHugh J pointed out in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, 624, the court cannot try a hypothetical action between the parties and burden the parties with the costs which by their settlement they had avoided.
There may, however, be cases where despite the lack of a final determination the court is able to find that the settlement was in fact simply a capitulation by one party in the face of probable defeat, where an order for costs may be appropriate. There may also be cases where the court is able to conclude that one party has acted so unreasonably that the other party should be entitled to an order for costs. But where it appears that both parties have acted reasonably in commencing and defending the proceedings, and their conduct continued to be reasonable until the proceedings came to an end, the proper exercise of the costs discretion will usually mean that the court will make no order as to costs: Ex parte Lai Qin, 625.[3]
[3] Lafferty v Waterton [2016] WASCA 183 [16] ‑ [18].
In Nichols v NFS Agribusiness Pty Ltd, Basten JA said:
although it is possible to make an order for costs against one party if it can be shown that it has invited the litigation by its unreasonable behaviour, or has unreasonably pursued the litigation, such an order should only be made where that judgment is manifest by reference to known circumstances, not in dispute between the parties. If the question cannot be answered without reviewing large swathes of evidence and resolving, on a tentative basis, disputed questions of fact, the task should not be embarked upon.[4]
[4] Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 [8].
In the present matter, I do not believe that the conduct of the plaintiff in commencing and prosecuting the Ademption Action was unreasonable, at least up to the time when it was put on hold pending the resolution of the Compromise Action. The plaintiff's agreement to dismiss those proceedings is not a capitulation, but a proper recognition that they have become unnecessary by reason of later events.
In my opinion, this is not an occasion where the court can or should delve further into the dispute.
Conclusion
The plaintiff should pay the costs thrown away by reason of the adjournment of the trial on 6 March 2018. There should otherwise be no order as to costs on the plaintiff discontinuing the Ademption Action.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson
2 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DE CAMPO -v- MICHAEL COLIN DAWSON as executor of the estate of ROSINA GISELLA DE CAMPO [2019] WASC 233 (S)
CORAM: ALLANSON J
HEARD: ON THE PAPERS
DELIVERED : 23 AUGUST 2019
FILE NO/S: CIV 1817 of 2016
BETWEEN: ROSANNA DE CAMPO
Plaintiff
AND
MICHAEL COLIN DAWSON as executor of the estate of ROSINA GISELLA DE CAMPO
First Defendant
GEROLAMO DE CAMPO
Second Defendant
Catchwords:
Costs - Whether separate costs order should be made for costs of executor
Legislation:
Nil
Result:
Separate costs order not made
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Fletcher Law |
| First Defendant | : | Dawson Davies |
| Second Defendant | : | Valenti Lawyers |
Case(s) referred to in decision(s):
Nil
ALLANSON J:
On 2 August 2019, I delivered reasons on the costs to be paid in this action. In short, I found that the plaintiff should pay the costs thrown away by reason of the adjournment of the trial on 6 March 2018. There should otherwise be no order as to costs on the plaintiff discontinuing the Ademption Action.
A question arose whether the order for costs thrown away by reason of the adjournment was intended to apply only to the costs of the second defendant. The first defendant, the executor of the estate of the late Rosina Gisella De Campo, submitted that there should be an order for his costs. I determined that the order should be for the costs of the second defendant only.
The first defendant has asked me to deliver supplementary reasons on why I would confine that order to the costs of the second defendant. Mindful of the first defendant's position as executor, I give these short supplementary reasons. These reasons are concerned only with the costs payable by the parties, and not whether the first defendant is entitled to be reimbursed out of the estate for costs incurred in the administration.
The first defendant submitted that, in an application by the first defendant seeking directions under s 92 of the Trustees Act 1962 (WA), it was ordered by consent that he provide to the defendants a proof of the evidence he was able to give in the action, and file a notice to abide the decision of the court.
The first defendant further submitted that any costs incurred by the estate would reduce the entitlements of both parties and therefore the second defendant would be prejudiced as a result of the estate being required to incur costs in these proceedings. The first defendant otherwise adopted the submissions of the second defendant.
On 24 November 2016, the first defendant filed a notice of intention to abide by the orders of the court, except as to costs. The action was not entered for trial until 11 August 2017.
The court record shows that the first defendant was to be called as a witness of fact by the second defendant. His witness statement, filed 11 December 2017, was filed on behalf of the second defendant, and prepared by the lawyers for the second defendant.
I would not make a separate order for the costs of the first defendant's costs, including the costs of his proposed appearance as a witness at trial as a witness for the second defendant. If the costs of preparing the witness statement were properly incurred by the second defendant, they would be costs of the second defendant thrown away on the late adjournment of the trial and come within the existing order. Otherwise they are to be borne by the estate. I do not accept that the second defendant is prejudiced by that order. Nor do I accept that it is the role of the first defendant to argue prejudice suffered by the second defendant.
With regard to costs other than the costs thrown away on the adjournment, for the reasons set out in my decision on the costs application I am not satisfied that this is a proper case for a costs order between the parties.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson
23 AUGUST 2019
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