JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GROVE -v- GROVE [2022] WASCA 86
CORAM: BUSS P
MURPHY JA
VAUGHAN JA
HEARD: 26 MAY 2022
DELIVERED : 25 JULY 2022
FILE NO/S: CACV 31 of 2021
BETWEEN: ANDREW HENDRICK GROVE
Appellant
AND
JOHN GROVE
First Respondent
SIMON DIRK KENWORTHY-GROEN
Second Respondent
SIMON DIRK KENWORTHY-GROEN as executor of the estate of WILLIAM GROVE
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
Citation: GROVE -v- KENWORTHY-GROEN [No 2] [2021] WASC 102
File Number : CIV 1764 of 2020
Catchwords:
Appeal - Costs - Action discontinued - Defendant ordered to pay plaintiff's costs of proceedings - Whether master erred in fact in finding that document fatal to the successful prosecution of the proceedings in defendant's possession at all material times - Whether finding of unreasonable conduct on part of defendant so as to warrant adverse costs order unreasonable or plainly unjust - Whether master erred in failing to find that plaintiff acted unreasonably so as to require costs order adverse to plaintiff - Turns on own facts
Legislation:
Nil
Result:
Application for leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | P Mendelow |
| First Respondent | : | P D C Robinson |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
Solicitors:
| Appellant | : | Dwyer Durack |
| First Respondent | : | Williams & Hughes |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
Case(s) referred to in decision(s):
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61; (2019) 99 NSWLR 419
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345
Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41
Chong v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402
Grove v Kenworthy-Groen [2020] WASC 363
Grove v Kenworthy-Groen [No 2] [2021] WASC 102
Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Lafferty v Waterton [2016] WASCA 183
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Re Western Australian Planning Commission; Ex parte Solomon [2010] WASCA 236 (S)
Spotless Group Ltd v Premier Building and Consulting Pty Ltd (receivers appointed) [2008] VSCA 115
Transport Accident Commissioner v O'Reilly [1998] VSCA 106; [1999] 2 VR 436
JUDGMENT OF THE…
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- Grove v Grove [2022] WASCA 86
- Case
- [2022] WASCA 86
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether Andrew's conduct was so unreasonable as to warrant the award of costs to John. Andrew contended that the master had erred in finding that he had engaged in unreasonable conduct in not disclosing the 1976 will, arguing that there was no evidentiary basis for the finding that the will was in his possession or that he was aware of it. The court examined Andrew's arguments and the relevant legal principles, considering whether the plaintiff acted reasonably in commencing the proceedings and whether the defendant acted reasonably in defending them. The court ultimately found that the costs order was justified by Andrew's alleged failure to speak up about the 1976 will prior to the commencement of the proceedings.
The court's reasoning was that Andrew's failure to disclose the existence of the 1976 will prior to the commencement of proceedings was a critical factor in determining whether his conduct was unreasonable. The court held that the costs order was dependent on the state of affairs pre-commencement, rather than any failure in the discovery context. The court found that Andrew's non-disclosure of the 1976 will was a significant factor in awarding costs to John, as it demonstrated that Andrew had acted unreasonably in not bringing the will to light earlier. The court also noted that there was no obligation on Andrew to ascertain whether there was a later will than the 1975 will, and that it was for John to make appropriate inquiries in that regard. Ultimately, the court upheld the master's decision, awarding John the costs of the proceedings.
The final orders of the court were that Andrew's appeal against the costs order was dismissed, and that John was to recover the costs of the proceedings from Andrew. The court found that Andrew's conduct was unreasonable and that the costs order was justified, as it was dependent on the state of affairs pre-commencement rather than any failure in the discovery context. The court's decision highlights the importance of acting reasonably in the context of wills and inheritance disputes, and the potential consequences of failing to do so.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In the present case the relevant question was whether Andrew had acted 'so unreasonably' that John should obtain the costs of the action.[37][37] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (624). Andrew referred to several authorities in support of his contention that he had not acted unreasonably.[38] It is not necessary to traverse the facts and outcomes in the various cases referred to by Andrew. Each is an illustration of the underlying principles we have referred to above. The authorities relied on distil, at bottom, into a consideration of whether the plaintiff acted reasonably in commencing the proceedings and whether the defendant acted reasonably in defending them. In propounding ground 1, Andrew characterised the master as having found that he (ie Andrew) was guilty of misconduct or unreasonable conduct in failing to identify the 1976 will before the commencement of the proceedings or in giving discovery - and that such misconduct or unreasonable conduct unnecessarily caused the proceedings to be commenced and maintained.[39][39] Appellant's submissions par 12 WAB 13 - 14. In support of ground 1, Andrew submitted that he was not guilty of any unreasonable conduct.[40] Conformably with the various sub-parts to ground 1 (see [28.1] - [28.4] above), Andrew argued that:1.The master erred in finding that he (ie Andrew) had engaged in unreasonable conduct in not disclosing the 1976 will prior to the commencement of proceedings, or within the discovery process, as there was no evidentiary basis for the finding that the will was in Andrew's possession (or, moreover, for finding that Andrew was aware of the 1976 will at the material times).[41]2.There was no dispute on the pleadings as to whether the 1975 will was Margaret's last will - meaning that the 1976 will was not discoverable and Andrew was not required to search for and make disclosure of the 1976 will.[42]3.There was no obligation on Andrew's part to ascertain whether there was a later will than the 1975 will.[43] To the contrary, it was for John to make appropriate inquiries in that regard.[44]4.In the pre-litigation correspondence sent on John's behalf there was no request that Andrew inform John whether the 1975 will was Margaret's last will.[45][40] Appellant's submissions par 64 WAB 24. See also par 44 WAB 19.[41] Appeal ts 2 - 3, 6, 11 - 12, 16 - 18, 20 - 25, 28 - 30; Appellant's submissions par 66 WAB 24. See also pars 8, 15, 25, 33, 39 - 40, 42 - 43, 45, 64 WAB 12 - 14, 16, 18 - 20, 24.[42] Appellant's submissions pars 26 - 40 WAB 17 - 19.[43] Appellant's submissions par 16 WAB 14.[44] Appeal ts 32, 35; Appellant's submissions par 22 WAB 16.[45] Appeal ts 32; Appellant's submissions pars 17 - 20 WAB 14 - 15. Some of these contentions should be put aside at once. First, as to [45.2] above, the non-discovery of the 1976 will is a secondary matter which cannot be dispositive of the appeal. The master awarded John the costs of the proceedings from their commencement rather than from the point that discovery was given. Accordingly, the costs order is to be justified by reference to Andrew's alleged failure to speak up about the 1976 will pre-commencement rather than his failure to discover the 1976 will. In short, the characterisation of Andrew's conduct as being 'so unreasonable' as to justify the adverse costs order made by the master is dependent on the state of affairs pre-commencement rather than any failure in the discovery context.