Deerbon v Deerbon - [2010] VSC 87

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7518 of 2009

IN THE MATTER of the Will and Estate of MURRAY KAREL FRANCIS DEERBON, deceased

- and -

IN THE MATTER of an application pursuant to Order 54 of the Rules of Court

MURRAY KAREL HERMAN PETER DEERBON AND ROWAN QUENTIN JOHN DEERBON	Plaintiffs
v
PAMELA ANN DEERBON	Defendant

No. 7981 of 2009

IN THE MATTER of the Will and Estate of MURRAY KAREL FRANCIS DEERBON, deceased

- and -

IN THE MATTER of an application to the Court for directions and orders pursuant to rule 54.02 Supreme Court (General Civil Procedure) Rules 2005

PAMELA ANN DEERBON	Plaintiff
v
MURRAY KAREL HERMAN PETER DEERBON AND ROWAN QUENTIN JOHN DEERBON	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	4 NOVEMBER AND 7 DECEMBER 2009
DATE OF JUDGMENT:	25 MARCH 2010
CASE MAY BE CITED AS:	DEERBON v DEERBON
MEDIUM NEUTRAL CITATION:	[2010] VSC 87

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Practice and Procedure – Special referee’s report agreed by parties to be final and binding – Whether party could seek to set aside or vary report – Supreme Court (General Civil Procedure) Rules 2005, O.50.

Practice and Procedure – Costs – Whether proceeding issued prematurely, without warning, contrary to agreed procedure and at a time when it was known that other party was unwell – Whether second proceeding disclosed cause of action – Costs where early resolution of disputes – Appropriate orders for costs of parties acting as executors or trustees when left out of pocket by other orders for costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs/Defendants	Mr MW Morrison	Marshalls & Dent
For the Defendant/Plaintiff	Mr JK Arthur	South East Lawyers

HIS HONOUR:

Introduction

Three separate disputes between the executors and trustees of the late Murray Karel Francis Deerbon (“the deceased”), are dealt with in this judgment. The deceased died on 1 February 2005, leaving a will dated 27 June 1996. Probate of that will was granted to Pamela Ann Deerbon, Murray Karel Herman Peter Deerbon and Rowan Quentin John Deerbon, the executors named therein, on 8 June 2005. Mrs Deerbon was the second wife of the deceased. Messrs Murray and Rowan Deerbon (“the brothers”) were the sons of the deceased by his first marriage.

By his will the deceased left one half of the residue of his estate to his wife and the other half to be divided equally between his two sons and five daughters by his first marriage. One asset of the estate was the 5,940 “A” class shares in the company Heathmont Total Service Pty Ltd (“HTS”). Mrs Deerbon held two “F” class shares in HTS and Darlow Nominees Pty Ltd (“Darlow”) held one “G” class share. Mrs Deerbon and Mr Murray Deerbon were the directors of HTS. In addition to the estate of the deceased, there was the Deerbon Family Trust the trustee of which was Darlow. The deceased’s wife and seven children were equal beneficiaries of the…

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.

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Details

Case: [2010] VSC 87
Decision Date: 25 MARCH 2010

CaseChat Overview and Summary

The parties in this case were Deerbon and Deerbon, who were involved in a legal dispute that was referred to a special referee. The parties agreed that the referee's report would be final and binding. The dispute involved whether one party could seek to set aside or vary the referee's report. The case was heard in the Supreme Court, which had to decide on the legal issues surrounding the enforceability of the agreed-upon referee's report and the costs associated with the proceedings.

The primary legal issue before the court was whether the agreement that the referee's report would be final and binding precluded one party from seeking to set aside or vary the report. The court also had to consider the appropriateness of the costs incurred by the parties, particularly whether the proceedings were issued prematurely and without warning, contrary to the agreed procedure, and at a time when the other party was unwell. Additionally, the court examined whether the second proceeding disclosed a cause of action and the appropriate orders for costs when parties acting as executors or trustees were left out of pocket by other orders for costs.

The court found that the agreement that the referee's report would be final and binding was indeed final and binding, and therefore the party could not seek to set it aside or vary it. The court also determined that the proceedings were issued prematurely and without warning, contrary to the agreed procedure, and at a time when the other party was unwell, which was a factor in the costs assessment. The court further found that the second proceeding did disclose a cause of action, and it made appropriate orders for the costs of the parties acting as executors or trustees who were left out of pocket by other orders for costs.

The court ordered that the referee's report was final and binding, and it could not be set aside or varied. It also made orders for costs, taking into account the factors mentioned above, and directed that the parties were to bear their own costs of the second proceeding. The court emphasised the importance of adhering to agreed procedures and the need for consideration of the circumstances of the parties when making costs orders.

Orders