Eyre-Walker v Swyrydan (Costs) - [2024] VSC 29

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2023 01661

DIANA EYRE-WALKER	First Plaintiff
VERA SWYRYDAN	Second Plaintiff
v
VICTOR SWYRYDAN	Defendant

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JUDGE:	GRAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2024
DATE OF JUDGMENT:	13 February 2024
CASE MAY BE CITED AS:	Eyre-Walker v Swyrydan (Costs)
MEDIUM NEUTRAL CITATION:	[2024] VSC 29

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ADMINISTRATION AND PROBATE — COSTS — Application for removal of executor and related orders — Settlement as to substantive orders save as to costs — Defendant consenting to discharge from office of executor — Whether defendant’s costs of the proceeding not reasonably and properly incurred by him as executor — Whether defendant should pay plaintiffs’ costs — Apportionment — Application for indemnity costs — Administration and Probate Act 1958 s 34 — Supreme Court Act 1986 s 24 — Supreme Court (General Civil Procedure) Rules 2015 rr 63.02, 63.04, 63.26.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G McCormick	Goldsmiths Lawyers
For the Defendant	Ms R Grayson Morison	Eales & Mackenzie

HIS HONOUR:

I am required to determine costs following the substantive settlement of a dispute just before the commencement of a trial between siblings appointed as executors of their mother’s estate. Two of the executors sought the removal of the third from office, claiming that he had a conflict of interest arising from his occupation of an estate property and that he was delaying or preventing the administration of the estate. He has now consented to an order that he be discharged. On 7 February 2024, I made an order to that effect and certain related orders. I reserved my decision as to his costs and the plaintiffs’ costs of the proceeding.

Applicable law and principles

Under s 24(1) of the Supreme Court Act 1986, the Court has a broad discretion as to the question of costs in a proceeding before it. That discretion must be exercised judicially, by reference to the factors raised by the case.[1] In ReBogdanov, McMillan J said that the ‘central principle’ is ‘to make an order that is fair and just between the parties in the circumstances of each case’, and summarised the applicable principles, being that usually a successful party in litigation is entitled to a costs order in its favour, and there is a discretion to award non-standard costs where the proceeding exhibits a special feature or unusual circumstance.[2]
[1]Eg Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (Oshlack), [40]–[45] (Gaudron and Gummow JJ), see also [65] (McHugh J, although dissenting in the result).
[2]Re Bogdanov; Atkins v Drummond (No 3) [2020] VSC 425, [10] (Re Bogdanov).

The principal claim in this proceeding was made under s 34(1) of the Administration and Probate Act 1958 (Act). Section 34(1) confers power on the Court to order the discharge or removal from office of an executor, including where…

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 Eyre-Walker v Swyrydan (Costs)

Details

AGLC: Eyre-Walker v Swyrydan (Costs) [2024] VSC 29
Case: [2024] VSC 29
Decision Date: 13 February 2024

CaseChat Overview and Summary

The case before the court involved a dispute over costs in the context of an application for the removal of an executor and related orders. The applicants were the plaintiffs, and the defendant was the executor of an estate. The substantive orders in the application were settled, except for the issue of costs. The defendant consented to be discharged from the office of executor, but the question remained whether the costs incurred by the defendant were reasonable and properly incurred in his capacity as executor, and whether the defendant should be ordered to pay the plaintiffs' costs. Additionally, the plaintiffs sought indemnity costs.

The court had to determine whether the defendant's costs were reasonably and properly incurred by him as executor. If the court found that the costs were not reasonably and properly incurred, it would need to consider whether the defendant should be ordered to pay the plaintiffs' costs. The court also had to decide whether the plaintiffs were entitled to indemnity costs under the relevant legislation and rules.

The court found that the defendant's costs were not reasonably and properly incurred by him as executor. The court held that the defendant should pay the plaintiffs' costs but did not order indemnity costs. The court based its decision on the provisions of the Administration and Probate Act 1958 and the Supreme Court Act 1986, as well as the Supreme Court (General Civil Procedure) Rules 2015. The court concluded that the defendant should pay the plaintiffs' costs from the date of the application, subject to a specific apportionment.

The final orders of the court were that the defendant should pay the plaintiffs' costs of and incidental to the proceeding from the date of the application to the date of judgment, subject to a specified apportionment. The plaintiffs were not granted indemnity costs.

Orders