Dunn v Perpetual Trustee Company Ltd (No 2)

[2021] VSC 803

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S ECI 2019 04547

IN THE MATTER of Part IV of the Administration and Probate Act 1958

and
IN THE MATTER of the Will and Estate of Irene May Ellis (also known as Irene Mary Dunn and Irene May Lindrum, deceased)

TANYA MAREE DUNN	Plaintiff
v
PERPETUAL TRUSTEE COMPANY LTD (ACN 000 001 007) (as Executor of the Estate of Irene May Ellis)	Defendant

---

JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	6 December 2021
CASE MAY BE CITED AS:	Dunn v Perpetual Trustee Company Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 803

---

COSTS – Interlocutory application – Application for summary judgment – Successful appeal from decision of Judicial Registrar – Whether costs should follow the event – Costs reserved for determination at trial – Dale v Clayton Utz (No 3) [2013] VSC 593.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	B Gillies	R B Legal
For the Defendant	J Smith	KCL Law

HIS HONOUR:

1. On 18 November 2021 I delivered my reasons for judgment in this proceeding in which I upheld an appeal from an order made by a judicial registrar summarily dismissing an application brought by the plaintiff pursuant to Part IV of the Administration and Probate Act 1958.[1]  The parties are in agreement about the form of orders to be made to give effect to my reasons for judgment, except in relation to costs.

   [1]Dunn v Perpetual Trustee Company Ltd [2021] VSC 755.

1. The plaintiff submitted that the defendant’s application for summary judgment was a discrete application which had been unsuccessful and that costs should follow the event.  It was submitted to be inappropriate for the Court to have to revisit the application for summary judgment at a later time in order to determine costs.  The plaintiff therefore sought her costs of the summary judgment application on a standard basis.

1. In the exercise of my discretion in relation to costs, I do not consider that the approach proposed by the plaintiff is appropriate in the circumstances of this case. 

1. In Dale v Clayton Utz (No 3),[2] Hollingworth J observed that, although the award of costs is always in the Court’s discretion, where there has been an unsuccessful application for summary judgment, it is sometimes described as the ‘normal’ or ‘common’ practice for costs to be in the proceeding, or for costs to be reserved.[3]  This is because an application for summary judgment may fail, even though the applicant for summary judgment may have good prospects of ultimately succeeding in the action.  Whether this is so will obviously depend upon the circumstances of each case.

   [2][2013] VSC 593.

   [3]Ibid [15], [16].

1. In the circumstances of this case, despite the plaintiff’s success in resisting the application for summary judgment, it is sufficient to note from the matters raised by the defendant in its submissions that there remain several obstacles to the plaintiff succeeding at trial.  It would appear that the plaintiff will need to establish, in order to satisfy the eligibility requirements prescribed by the Act, that she was ‘likely in the near future, had the deceased not died, to again become’ a member of the household which she contends she was once part of with the deceased.  The plaintiff will also need to establish that, as the adult niece of the deceased, the deceased owed her a moral duty.  It is sufficient to note that the defendant intends to contest both of these propositions and that it is an open question whether the plaintiff will succeed in satisfying those requirements.

1. If the plaintiff is successful in relation to these matters, the defendant also submitted that there is a real possibility that any award for further provision may be of a ‘trifling sum’ because of the nature of the dependency found to exist between the plaintiff and the deceased. It is inappropriate for me to address that contention, save to note that it is a further matter which may bear upon the outcome of the matter at trial.

1. The prospect of the above issues and controversies arising at trial means that, despite having failed to summarily dismiss the proceeding, the possibility that the defendant might succeed at trial is not merely theoretical or fanciful.  The appropriate course is therefore for costs to be reserved for determination at trial.

---