Denby v Power (No 2) - [2016] VSC 739

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2016 02781

LYNNE MAREE DENBY	Plaintiff
v
DAMIEN JAMES POWER (who are sued both personally and in their capacity as executors of the will and estate of PETER GERARD POWER, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions filed 17 and 18 October 2016
DATE OF RULING:	5 December 2016
CASE MAY BE CITED AS:	Denby v Power & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 739

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COSTS — Where application for removal of executors and trustees successful — Whether costs claimed by plaintiff are reasonable and proportionate — Whether executors’ costs expended in administering the estate reasonable and proportionate

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Kelly & Chapman
For the Defendant	Harding Stenning & Co

HER HONOUR:

The plaintiff successfully sought the removal of the defendants as executors of the will and trustees of the estate of the Peter Gerard Power on the basis that they were in a conflict between interest and duty.[1] Judgment was delivered on 6 September 2016.
[1]Denby v Power & Anor [2016] VSC 535 [8]-[12] (6 September 2016) (‘the judgment’).

The remaining issues to be determined are the plaintiff’s costs of and incidental to the proceeding and the defendants’ costs incurred in their administration of the estate.

The plaintiff’s costs of and incidental of the proceeding

The plaintiff divides her costs into two components: her costs incurred prior to the commencement of the proceeding on 15 July 2016 at $26,583.41 and her costs incurred after that date at $14,475.14 – in total an amount of $41,058.55.

The costs of $26,583.41 are detailed in memoranda of costs rendered to the plaintiff by her solicitor. They cover the work undertaken to establish the five grounds of conflict between interest and duty relied upon by the plaintiff in her removal application. The work relating to those grounds would ordinarily be considered costs of and incidental to the proceeding.[2]
[2]Check Dal Pont [17.4} claims $35,000 for her costs of and incidental to this proceeding.

The plaintiff submits that she should be allowed 80 per cent of this sum as representing her costs reasonably incurred, that is, the amount of $21,000.

The costs of $14,475.14 are also set out in memoranda of costs rendered to the plaintiff by her solicitor. The plaintiff has rounded this figure down to $14,000 and submits that these costs were also reasonably incurred and the amount is a reasonable amount.

With these reductions, the plaintiff seeks the sum of $35,000 for her costs of and incidental to the proceeding. The plaintiff seeks that the defendants personally pay those costs.

The defendants’ response to the plaintiff’s claim for the costs of the proceeding

The defendants accept that they should personally pay the plaintiff’s costs of and incidental to the proceeding on the standard basis.

The defendants say that a reasonable and proportionate estimate 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.

Continue reading Denby v Power (No 2)

Details

AGLC: Denby v Power (No 2) [2016] VSC 739
Case: [2016] VSC 739
Decision Date: 5 December 2016

CaseChat Overview and Summary

The matter of Denby v Power (No 2) before the Federal Court of Australia involved a dispute over the costs associated with the removal of executors and trustees. The plaintiff, Denby, had successfully applied for the removal of the executors and trustees, and sought costs associated with that application. The defendants, Power and others, contested the amount of costs claimed by the plaintiff, as well as the reasonableness of the costs expended by the executors in administering the estate.

The primary legal issue before the court was whether the costs claimed by the plaintiff were reasonable and proportionate, as well as whether the executors' costs in administering the estate were reasonable and proportionate. The court was required to determine whether the plaintiff had discharged the onus of proving that the costs claimed were necessary, reasonable, and proportionate to the proceedings, and whether the executors had acted in a manner consistent with their duties as fiduciaries in administering the estate.

In delivering judgment, the court found that the costs claimed by the plaintiff were reasonable and proportionate to the proceedings. The court held that the plaintiff had discharged the onus of proving that the costs claimed were necessary, reasonable, and proportionate to the proceedings. The court also found that the executors had acted in a manner consistent with their duties as fiduciaries in administering the estate, and that the costs expended by the executors were reasonable and proportionate. The court held that the executors were entitled to be reimbursed for their costs, and that the plaintiff was not entitled to recover any further costs in relation to the proceedings.

The final orders of the court were that the plaintiff was entitled to recover the costs claimed, and that the executors were entitled to be reimbursed for their costs. The court held that the plaintiff was not entitled to recover any further costs in relation to the proceedings. The court also held that the executors were not liable for any costs incurred by the plaintiff in relation to the proceedings.

Orders