COSTS – Family provision – Unsuccessful appeal by executor/sole beneficiary – Whether appellant should pay costs of appeal personally – Whether appellant acted reasonably in bringing appeal – Distinction drawn between appeal against factual findings and appeal on legal issue – Supreme Court (General Civil Procedure) Rules 2005, rr 63.32(2), 64.24(1).
EVIDENCE – Admissibility of what was said at a mediation and without prejudice offers of settlement – Supreme Court Act 1986, s 24A; Evidence Act 2008, sub-ss 131(1) and (2)(h).
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Appearances:
Counsel
Solicitors
For the Appellant
Mr J D Loewenstein
Peter J Walsh Carroll Kiernan & Forrest
For the Respondent
Mr A Panna SC with Mr K MacFarlane
Remington Wright & Co
NEAVE JA REDLICH JA HABERSBERGER AJA:
On 22 June 2010 the Court handed down its judgment[1] dismissing the appeal against the order by the learned trial judge that half of the estate of the deceased, Mr Malcolm Forsyth, be paid to Mrs Marlene Sinclair. The unsuccessful appellant, Campbell Forsyth, was the brother of the deceased and the sole remaining executor and beneficiary under the deceased’s 1973 will.
Senior counsel for the respondent then sought an order that the appellant pay the respondent’s costs personally on a solicitor and client basis and an order that the appellant/executor not be entitled to be reimbursed out of the assets of the estate for his own legal costs of the appeal or for the costs to be paid by him to the respondent for her costs of the appeal. He handed up the respondent’s written submissions on costs. Counsel for the appellant opposed the orders sought by the respondent and submitted that both parties should have their costs out of the estate on a solicitor and client basis. After hearing preliminary argument, the Court ordered that the parties file and serve any further submissions in accordance with a specified timetable.
It now appears that on 24 June 2010, the day before the appellant’s submissions were due to be filed and served, the solicitors for the respondent wrote to the appellant’s solicitors requesting the appellant’s consent to the respondent informing the Court of something that had been said by the respondent’s counsel, at the mediation of the appeal conducted by Gardiner AsJ in February 2009 (‘the 2009 mediation’), concerning the costs of the appeal. Enclosed with the letter was a draft letter which the respondent’s solicitors proposed sending to the Court if the appellant consented. It contained a description of what had allegedly been said…
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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AGLC
Forsyth v Sinclair (No 2) [2010] VSCA 195
Case
[2010] VSCA 195
Decision Date
CaseChat Overview and Summary
In the case of Forsyth v Sinclair, the deceased's estate was the subject of a family provision claim by her son. The executor and sole beneficiary, Sinclair, was unsuccessful in the primary hearing and subsequently appealed to the Supreme Court. The son sought costs of the appeal against Sinclair personally. The legal issues at hand were whether Sinclair should be held liable for the costs of the appeal, if his decision to appeal was reasonable, and the admissibility of evidence from mediation and settlement offers.
The court examined the circumstances under which an executor might be liable for costs, particularly focusing on the reasonableness of the appeal. It distinguished between appeals against factual findings, which may warrant costs, and appeals on legal issues, which may not. In this instance, the court found Sinclair's appeal to be reasonable as it involved a significant legal issue. Regarding the evidence, the court held that statements made during mediation and without prejudice settlement offers were inadmissible under the Supreme Court Act 1986 and the Evidence Act 2008.
The court concluded that Sinclair should not pay the costs of the appeal personally, as the appeal was deemed reasonable. The court's decision hinged on the distinction between appeals based on factual findings and those based on legal issues. Consequently, Sinclair was not personally liable for the costs of the appeal. The court's reasoning was grounded in the principles of fairness and the nature of the appeal, reflecting a nuanced approach to the allocation of costs in family provision disputes.