DARCY RYDER GIBB and STELLA ROSE GIBB (minors who bring this proceeding by their litigation guardian, MEGAN JANE MCAULIFFE)	Plaintiffs
v
DAVID SETH HAZELWOOD GIBB and VALERIE ISABEL GIBB (as executors of the will of Christopher Francis Gibb, deceased)	Defendants

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JUDGE:	McDONALD J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2014
DATE OF JUDGMENT:	23 February 2015
CASE MAY BE CITED AS:	Gibb v Gibb
MEDIUM NEUTRAL CITATION:	[2015] VSC 35

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TESTATOR’S FAMILY MAINTENANCE — Application under Part IV of the Administration and Probate Act 1958 — Deceased appointed his parents as trustees and administrators of his Estate — Litigation guardian concerned that trustees would not make distributions from the Estate — No evidentiary basis for litigation guardian’s concern.

LEGAL PRACTITIONERS — Whether plaintiffs’ solicitors should be liable for costs of proceeding — No proper legal or factual basis for commencing proceedings — Administration and Probate Act 1958 s 91 — Trustee Act 1958 ss 41, 48 — Overarching obligations of practitioners — Duties of legal practitioners to court — Civil Procedure Act 2010 ss 18, 24, 29.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms C R McOmish	Michael Faltermaier Lawyers
For the Defendants	Mr S P Newton	Brendan H Hardiman & Associates

HIS HONOUR:

Christopher Francis Gibb (‘Christopher’) was born on 15 September 1967 and died on 13 January 2013. He left an estate valued for probate at $151,941.26 (‘Estate’). He is survived by his two children, Darcy Ryder Gibb and Stella Rose Gibb, twins born on 9 June 2010 (‘the children’). The children are the plaintiffs in this proceeding. The children’s mother, Megan Jane McAuliffe (‘Megan’), is the litigation guardian of the children and has brought this proceeding on their behalf.

Megan met Christopher in or around May 2009. In September 2009, Megan became pregnant. In March 2010, Christopher and Megan entered into a de facto relationship, residing at Christopher’s residence in Ringwood. The relationship ended in March 2011 when Megan left the Ringwood residence and went to live with her mother in Williamstown.

Christopher was diagnosed with stomach cancer on 20 January 2012. Thereafter, he went to live with his parents, David and Valerie Gibb (‘David and Valerie’). On 7 March 2012, he ceased employment and commenced receipt of a disability support pension. On the same day he executed a will (‘Will’). Under the terms of that Will, he appointed David and Valerie as executors and trustees of the Will. In the event that either Valerie or David were unable to act in that capacity, he appointed his sister, Davina Halls, to be executrix and trustee of the Will.

Clause 5 of the Will is as follows:

I GIVE DEVISE AND BEQUEATH to my Trustee UPON TRUST

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 Gibb v Gibb

Details

AGLC: Gibb v Gibb [2015] VSC 35
Case: [2015] VSC 35
Decision Date: 23 February 2015

CaseChat Overview and Summary

In Gibb v Gibb, the court considered an application under Part IV of the Administration and Probate Act 1958. The litigation guardian of the deceased, who had appointed his parents as trustees and administrators of his estate, sought to challenge the trustees' proposed distribution of the estate. The litigation guardian was concerned that the trustees might not make adequate distributions from the estate, but there was no evidentiary basis for this concern.

The legal issues before the court included whether the plaintiffs' solicitors should be liable for the costs of the proceeding due to the lack of a proper legal or factual basis for commencing the proceedings. The court considered the provisions of the Administration and Probate Act 1958, the Trustee Act 1958, and the overarching obligations of legal practitioners under the Civil Procedure Act 2010. The court determined that the plaintiffs' solicitors had no proper basis for commencing the proceedings and found them liable for the costs.

The court's reasoning centred on the lack of evidentiary support for the litigation guardian's concerns and the overarching obligations of legal practitioners to the court. The plaintiffs' solicitors had commenced the proceeding without a proper legal or factual basis, and the court found this to be an abuse of process. The court held that the solicitors were liable for the costs of the proceeding. The court dismissed the application and made orders for costs against the plaintiffs' solicitors in accordance with the Civil Procedure Act 2010.

Orders