Legal Research
Cases
Hambleton v State Trustees Ltd

Hambleton v State Trustees Ltd

Case [2016] VSC 215 16 May 2016

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 00786

MARY JOSEPHINE HAMBLETON	Plaintiff
v
STATE TRUSTEES LTD (ACN 064 593 148) (who act as Administrator of the Estate of Bruce Francis Campbell, deceased)	Defendant

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2016
DATE OF RULING:	16 May 2016
CASE MAY BE CITED AS:	Hambleton v State Trustees Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 215

---

PRACTICE AND PROCEDURE – Application for leave to discontinue proceeding – Outstanding issue of costs – Supreme Court (General Civil Procedure) Rules 2015 r 63.15 – Breach of overarching obligations – Indemnity costs – Civil Procedure Act 2010 (Vic) s 16, 28 and 29 – Actrol Parts Pty Ltd v Coppi (No 3) [2015] VSC 758 applied.

COSTS – Offer of compromise made by defendant refused by plaintiff – Supreme Court (General Civil Procedure) Rules 2015 r 26.08 - Judgment on a claim in the proceeding enlivens the jurisdiction to make orders under r 26.08 – No special circumstances sufficient to displace order of indemnity costs – Davis v Robek Australia Pty Ltd [2014] VSC 360 and IFTC Broking Services Ltd v Commissioner of Taxation (2010) 268 ALR 1 applied – Exceptional case required to depart from prima facie position of indemnity costs – Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 applied– Murphy v Westpac Banking Corporation (No 2) [2015] FCA 266 considered – Consider circumstances operative at the time the relevant offer was open for acceptance – Conduct said to amount to special circumstances postdates expiry of time for acceptance of the offer and did not alter the landscape of the proceeding – Defendant entitled to costs on indemnity basis.

COSTS – Offer of compromise made by defendant refused by plaintiff – Unreasonable for plaintiff to fail to accept offer of compromise - Smith v Jovanoska (No 2) [2013] VSC 714 and Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 considered – Special circumstances sufficient to displace operation of r 26.08(4) as judgment obtained other than on the adjudication of the merits of the claim.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Hume	Vernon Da Gama & Associates
For the Defendant	Mr P Wallis	Maddocks

HER HONOUR:

This proceeding concerns a dispute between the plaintiff, Ms Hambleton, and the defendant, State Trustees Ltd (‘State Trustees’), regarding the administration of Ms Hambleton’s late father’s estate (‘estate’). The dispute arose out of the terms of the settlement of an earlier proceeding, where State Trustees, the executor of the estate, sought to recover from Ms Hambleton’s husband an amount said to represent a half share of a property which was said by State Trustees to form part of the estate (‘County Court proceeding’). The terms of settlement provided that Ms Hambleton would forego her entitlement to a one‑fifth share of the (modest) estate. If Ms Hambleton ever…

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 Hambleton v State Trustees Ltd

Details

AGLC: Hambleton v State Trustees Ltd [2016] VSC 215
Case: [2016] VSC 215
Decision Date: 16 May 2016

CaseChat Overview and Summary

The case of Hambleton v State Trustees Ltd involved an application for leave to discontinue proceedings in the Supreme Court of Victoria. The dispute centred on the costs incurred by the parties, specifically the refusal of an offer of compromise made by the defendant, State Trustees Ltd, which was rejected by the plaintiff, Hambleton. The court had to determine whether the plaintiff's refusal to accept the defendant's offer constituted special circumstances that would displace the usual order of indemnity costs, as provided for in the Supreme Court (General Civil Procedure) Rules 2015. The application for leave to discontinue was contingent on resolving the outstanding issue of costs.

The court was required to consider several legal issues, primarily whether the plaintiff's refusal to accept the defendant's offer of compromise constituted special circumstances that would displace the usual order for indemnity costs. The court also needed to assess if the plaintiff's conduct amounted to a breach of overarching obligations under the Civil Procedure Act 2010 (Vic). The court further examined whether the defendant was entitled to costs on an indemnity basis, taking into account the relevant rules and authorities, including Actrol Parts Pty Ltd v Coppi (No 3) and Davis v Robek Australia Pty Ltd.

The court held that the plaintiff's refusal to accept the defendant's offer of compromise did not constitute special circumstances as the conduct in question occurred after the offer had lapsed and did not alter the proceedings' landscape. The court determined that the defendant was entitled to costs on an indemnity basis, as the plaintiff's conduct was not deemed unreasonable under the circumstances. The court applied the principles from Port Kembla Coal Terminal Ltd v Braverus Maritime Inc and Murphy v Westpac Banking Corporation, concluding that an exceptional case was required to depart from the prima facie position of indemnity costs. Consequently, the defendant's application for leave to discontinue was granted, subject to the resolution of the costs issue in accordance with the court's directions.

Orders