Dufrenne v Hoy
[2002] VSC 21
•26 February 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 8024 of 2001
IN THE MATTER OF THE WILL AND ESTATE OF JOHN HEWITT HOY
| SELWYN JUDE DUFRENNE | Plaintiff |
| v. | |
| CHRISTOPHER PHILLIP HOY | Defendant |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 FEBRUARY 2002 | |
DATE OF JUDGMENT: | 26 FEBRUARY 2002 | |
CASE MAY BE CITED AS: | DUFRENNE v. HOY | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 21 | |
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CATCHWORDS: Order as to costs of proceeding.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. P.J. Hannan | Frederick Owen & Associates |
| For the Defendant | Mr. W. Coady | Coadys |
HIS HONOUR:
On 5 April 2000 John Hewitt Hoy died. By his last will the deceased appointed Christopher Phillip Hoy his executor. A beneficiary of the deceased's estate is Selwyn Jude Dufrenne.
On 20 November 2000 Dufrenne's solicitors wrote to Hoy informing him that they acted on behalf of Dufrenne and seeking a copy of the deceased's last will and codicil. As Hoy resides in New South Wales they also enquired of Hoy as to the solicitors who were handling the deceased's estate in Victoria.
Some short time thereafter Hoy forwarded a copy of the deceased's will and codicil to Dufrenne and his solicitors and advised them of the identity of the solicitors in Melbourne who were handling the deceased's estate on his behalf.
Between November 2000 and May 2001 there were communications and correspondence between Dufrenne's solicitors and Hoy's solicitors concerning the delay which was occurring in an application being made for probate of the deceased's will and estate.
On 6 March 2001 Dufrenne's solicitors sent a notice to Hoy and to his solicitors pursuant to s.15 of the Administration and Probate Act 1958 notifying Hoy that he should show cause why he had not obtained probate or renounced probate of the deceased's will.
On 25 May 2001 Dufrenne's solicitors wrote a further letter to Hoy's solicitors. The letter stated (inter alia):
"Please advise whether Probate has been granted as a matter of urgency by return. If necessary, we shall seek orders from the Supreme Court requesting the will be delivered up and the removal of your client as executor of the estate."
Unbeknown to Dufrenne or his solicitors on 12 September 2001 Hoy's solicitors advertised Hoy's notice of intention to apply for probate.
On 5 October 2001 Dufrenne's solicitors prepared the necessary affidavit to support a s.15 application. That day they carried out a search at the probate office to ascertain whether Hoy had lodged any application for probate. The search revealed no such application.
However, on 15 October 2001 Hoy's solicitors lodged an appropriate application for probate of the deceased's will and estate. Regrettably they did not see fit to inform Dufrenne's solicitors of that fact.
On 19 October 2001 Dufrenne's solicitors filed the present originating motion in the Court whereby they seek relief pursuant to s.15 of the Act.
On 24 October 2001 probate of the deceased's will and estate was granted to the defendant Hoy thereby effectively bringing Dufrenne's proceeding to an end.
The question for me to determine now, is who should bear the costs of the proceeding.
For the defendant it is contended that the plaintiff should bear his own costs of the proceeding.
The argument in support of that contention is contained in the affidavit of Robin Francis Parsons sworn 15 February 2002, the relevant paragraphs of which read:
"17.It is correct to say, as Mr. Owen has deposed in paragraph 8 of his affidavit, that at 5 October 2001 (the date of his affidavit) no probate application had been lodged on behalf of the defendant. However, based on my experience as a specialist practitioner, I am of the opinion that an experienced practitioner such as Mr. Owen would have office systems in place by which his attention would be drawn daily to the probate and administration advertisements published in newspapers circulating in Melbourne. I am of the opinion that, on or shortly after 12 September 2001, Mr. Owen would have become aware of the defendant's advertisement, by which he notified of his intention to apply for probate 14 days after the advertisement was published.
18.Mr. Owen has deposed in paragraph 24, inter alia, that he undertook a Probate Search, on or about 18 April 2001, and again on the date of swearing his affidavit, which revealed that a probate application had not been lodged. Mr. Owen does not, however, depose to the making of any Probate Search immediately before the lodging of the Originating Motion and application in these proceedings. Had he done so, the search would have revealed the application lodged on 15 October 2001."
Whilst it may well be that certain firms of solicitors have a system in place whereby some record is maintained of all advertisements giving notice of applications for probate or letters of administration I do not believe any criticism of the plaintiff's solicitors for their apparent failure to do so is justified. Nor in my opinion can they be criticised for their failure to make a probate search prior to filing the originating motion on 19 October.
It would seem to me that to suggest otherwise is no more than looking at the matter with the benefit of hindsight.
Having caused a probate search to be undertaken on 5 October, I consider that in the absence of more, the plaintiff's solicitors were justified in filing the originating motion on 19 October without making a further probate search.
It would seem to me that the real cause of the problem in this case was the failure on the part of the defendant's solicitors to notify the plaintiff's solicitors that they had advertised notice of the application for probate on 12 September 2001 and that they had lodged an application for probate on 15 October shortly after those steps were taken. Had they done so it would not have been necessary for the plaintiff's solicitors to file the originating motion.
It must be remembered that the deceased died on 5 April 2000. In my opinion the delay which occurred in lodging the application for probate was quite unacceptable.
Whilst there may have been a satisfactory explanation for some of the delay, for example the ill health of the defendant, the failure of the defendant to make the application expeditiously clearly justified the plaintiff pursuing the matter in the manner he did.
I think that in the circumstances of the case a solicitor acting reasonably in the matter would have notified the plaintiff's solicitors once the application was made thereby removing the threat of any s.15 proceeding.
In my opinion the appropriate order to be made concerning the plaintiff's costs of the proceeding is that they be paid by the defendant.
I order that the originating motion be struck out. I order that the plaintiff's costs of the proceeding including any reserved costs be taxed and paid by the defendant.
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