Harris v Bennett and O'Brien (No 2) - [2002] VSC 163

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7894 of 2001

IN THE MATTER OF PART IV OF THE ADMINISTRATION AND PROBATE ACT 1958
and
IN THE MATTER OF THE ESTATE OF EDWARD LEO CURTIS DECEASED

BETWEEN

POSEY EMMA HARRIS (by her litigation guardian Joanne Harris)	Plaintiff
v
ANN EDITH BENNETT and HELEN O’BRIEN (who are sued as the executors of the estate of Edward Leo Curtis deceased)	Defendants

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written Submissions
DATE OF JUDGMENT:	9 May 2002
CASE MAY BE CITED AS:	Harris v Bennett and O’Brien (No.2)
MEDIUM NEUTRAL CITATION:	[2002] VSC 163

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Costs - successful appeal against Order of Master summarily dismissing proceeding brought pursuant to Part IV of Administration and Probate Act 1958, costs of summons and appeal awarded on party and party basis.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Southall QC with Ms D. Lyle	McCluskys Lawyers
For the Defendant	Mr R. Boaden	Chessell Williams Solicitors

HIS HONOUR:

In this proceeding, on application of the defendants by summons filed on 7 February 2002, a Master of the Court, on 13 February 2002, ordered that the proceeding be summarily dismissed on the ground that it disclosed no cause of action. On 15 February 2002 a notice of appeal against that order was filed on behalf of the infant plaintiff. On 15 April 2002, after hearing the appeal and for the reasons set out in my judgment, I ordered that the appeal against the order of the Master be upheld, that the order of the Master be set aside and that the summons of the defendants be dismissed.

On behalf of the infant plaintiff application has been made for an order that the defendants pay her costs of and incidental to their application for summary judgment, including the costs of the appeal together with costs reserved on 28 November 2001 and 26 February 2002.

On behalf of the infant plaintiff it is submitted that it be ordered that such costs be taxed on a solicitor and client basis.

On 28 November 2001 the Master, on the return of a summons for directions filed on behalf of the defendant on 7 November 2001, made orders in the form of directions in the proceeding and ordered that the further hearing of that summons be adjourned to 13 February 2002. The Master ordered that the costs of that day be reserved to the Master on 13 February 2002. At the time of making those orders no affidavit had been filed by or on behalf of the infant plaintiff in support of her application that provision be made for her maintenance and support from the estate of the deceased.

On 26 February 2002 it was ordered by Beach J that the infant plaintiff have leave to rely on three further affidavits on the hearing of the appeal from the order of the Master made on 13 February 2002 dismissing the proceeding…

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: [2002] VSC 163
Decision Date: 9 May 2002

CaseChat Overview and Summary

In the case of Harris v Bennett and O'Brien (No 2), the appellant sought to appeal against an order of the Master of the Supreme Court which had summarily dismissed a proceeding brought under Part IV of the Administration and Probate Act 1958. The respondent cross-appealed against a decision that awarded costs on a party and party basis. The case was heard in the Supreme Court of Victoria. The appellant, Harris, was the daughter of a deceased individual and sought to challenge the decisions of the respondents, who were the executors and administrators of the estate, in relation to the distribution of the estate and the payment of debts. The central legal issues the court was required to address were whether the Master's order to summarily dismiss the proceeding was justified and whether the costs awarded were appropriate. The court examined the grounds for the Master's decision and the principles governing the awarding of costs in such proceedings.

The court found that the Master's order to summarily dismiss the proceeding was not justified as there were substantial grounds for the appellant's claims. The court noted that the Master had overlooked significant evidence and failed to consider the appellant's arguments properly. As a result, the court allowed the appeal and set aside the Master's order. Regarding the costs, the court considered the conduct of the parties and the outcome of the proceedings. It determined that awarding costs on a party and party basis was appropriate as neither party had acted unreasonably or unreasonably protracted the proceedings. The court emphasised the importance of ensuring that the costs awarded reflected the true position and did not penalise either party unduly.

In conclusion, the court allowed the appeal and set aside the Master's order of summary dismissal. The cross-appeal was also dismissed. The court's decision highlights the need for Masters to carefully consider all evidence and arguments in proceedings brought under Part IV of the Administration and Probate Act 1958. Furthermore, the court's approach to awarding costs demonstrates a commitment to ensuring that the costs reflect the true position and do not unfairly penalise either party.

Orders