Grove v Kenworthy-Groen [No 2] - [2021] WASC 102

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GROVE -v- KENWORTHY-GROEN [No 2] [2021] WASC 102
CORAM:   MASTER SANDERSON
HEARD:   16 MARCH 2021
DELIVERED          :   13 APRIL 2021
PUBLISHED           :   13 APRIL 2021
FILE NO/S:   CIV 1764 of 2020
BETWEEN:   JOHN GROVE
Plaintiff

AND

SIMON DIRK KENWORTHY-GROEN
First Defendant

SIMON DIRK KENWORTHY-GROEN as executor of the estate of WILLIAM GROVE
Second Defendant

ANDREW HENDRICK GROVE
Third Defendant

Catchwords:

Costs - Action discontinued - Appropriate costs order - Turns on own facts

Legislation:

Nil

Result:

Costs order made

Category: B

Representation:

Counsel:

Plaintiff	:	Mr P D C Robinson
First Defendant	:	Mr L A Tsaknis
Second Defendant	:	Mr L A Tsaknis
Third Defendant	:	Mr D R Gill

Solicitors:

Plaintiff	:	Williams & Hughes
First Defendant	:	Fort Knox Legal
Second Defendant	:	Fort Knox Legal
Third Defendant	:	Dwyer Durack

Case(s) referred to in decision(s):

Grove v Kenworthy‑Groen [2020] WASC 363

MASTER SANDERSON:

By chamber summons filed on 7 December 2020, the plaintiff sought leave to discontinue this action. The defendants consented to that order being made. The dispute between the parties related to costs. The plaintiff sought in his chamber summons to vacate all existing costs orders and he sought an order that the defendants pay the costs of the action. The defendants maintained the existing costs orders ought be left untouched and that the plaintiff ought pay their costs of the action.
This action is one of a number of actions involving one family. Throughout these reasons I will use the Christian names of the parties without meaning any disrespect. The plaintiff (John) is the son of the late William and Margaret Grove. He is the brother of the late Sonja Grove and the brother of the first defendant (Simon) and the third defendant (Andrew). The statement of claim identifies the B E Lynn Trust. It is pleaded it was established by Margaret in 1971 with Margaret as the trustee. The beneficiaries were John, Simon, Andrew and Sonja. The trust deed contained a clause vesting the power to appoint or remove a trustee of the trust in Margaret or her legal personal representatives. That power could only be exercised by written instrument.
Paragraph 4 of the statement of claim is crucial to the determination of this costs application. John pleads that Margaret's last will was dated 5 February 1975. It also pleads that the will appointed William as executor and left all real and personal property to the four children.
Margaret died on 16 June 1977. By par 6 it is pleaded that no application for probate of Margaret's estate was made by William during his lifetime and has not been made by anybody else. It is pleaded the assets of Margaret's estate included the assets of the B E Lynn Trust and that after Margaret died William purported to act as trustee of the B E Lynn Trust. It is pleaded William was not validly appointed as trustee of the B E…

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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Details

Case: [2021] WASC 102
Decision Date

CaseChat Overview and Summary

The plaintiff, John Grove, sought leave to discontinue this action against the defendants, Simon Dirk Kenworthy-Groen, Simon Dirk Kenworthy-Groen as executor of the estate of William Grove, and Andrew Hendrick Grove. The defendants consented to the order being made, but a dispute arose regarding the costs of the action. The plaintiff sought to vacate all existing costs orders and for the defendants to pay the costs of the action, while the defendants argued that the existing costs orders should stand and that the plaintiff should pay their costs. The action was part of a series of family disputes, with the central issue being the administration of the estate of Margaret Grove, John's mother, and the validity of her wills.

The court was required to decide whether the plaintiff's action was reasonable and justified, given the circumstances, and whether the discovery of a later will made any difference to the plaintiff's position. The court also had to determine whether the plaintiff's case was hopeless from the start, and if so, whether the plaintiff should be liable for the defendants' costs. The court had to balance the intransigence of the defendants against the plaintiff's reasonable belief that the 1975 will was the last will of Margaret Grove.

The court found that the plaintiff acted reasonably throughout the proceedings, having no reason to believe that the 1975 will was not the last will of Margaret Grove. The discovery of a later will, dated 1976, which revoked all earlier wills and left all property to William Grove, rendered the plaintiff's action futile. The court held that the plaintiff's case was not hopeless from the start, as the plaintiff still had the opportunity to be appointed administrator of the estate if there was property to which he might be entitled. The court also found that the third defendant's failure to identify the 1976 will as the relevant testamentary document led to the proceedings being initiated and pursued by the plaintiff. Therefore, the proper costs order was that the present extant costs orders be vacated, and the third defendant pay the plaintiff's costs of the action, including reserved costs. The court made no order as to costs for the first and second defendants, as they did not seek costs against the third defendant.

The court's decision highlights the importance of the duty of disclosure in litigation, and the consequences of failing to identify and disclose relevant documents. The court also emphasised the need for parties to act reasonably and in good faith throughout the litigation process. The decision serves as a reminder to parties to ensure that they have all relevant information before initiating proceedings, and to act promptly once it becomes apparent that the case is no longer tenable.

Orders