Higgins v Wilkinson (Ruling)
[2017] VCC 1942
•20 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
FAMILY PROPERTY LIST
Case No. CI-16-03633
IN THE MATTER OF Part IV of the Administration and Probate Act 1958
-and-
IN THE MATTER OF the Will and Estate of WAYNE KELVIN HIGGINS, deceased
| BRIANNA HIGGINS | Plaintiff |
| v | |
| JENNIFER WILKINSON (as Executor of the Will of Wayne Kelvin Higgins, deceased) | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 September 2017 | |
DATE OF RULING: | 20 December 2017 | |
CASE MAY BE CITED AS: | Higgins v Wilkinson (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1942 | |
RULING
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Subject: TESTATOR’S FAMILY MAINTENANCE
Catchwords: Costs
Legislation Cited: Administration and Probate Act 1958 (Vic), Part IV; Legislation Amendment (Succession and Surrogacy) Act 2014; County Court Act 1958 (Vic); Civil Procedure Act 2010 (Vic); Transfer of Land Act 1958 (Vic)
Cases Cited: Higgins v Wilkinson [2017] VCC 1534; Gibb v Gibb [2015] VSC 35
Ruling:Defendant to file and serve any supporting affidavits by Friday, 2 February 2018 and any affidavit or affidavits in opposition by 16 February 2018.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S G R Wilmoth | Bartram Lawyers |
| For the Defendant | Ms R G Morison | Hassall’s Litigation Services |
HER HONOUR:
1 On 27 October 2017, the Court published its Reasons for Judgment.[1] The court ordered that the plaintiff’s application be dismissed. The Court reserved its decision on costs of the caveat proceeding pending written submissions from the parties. After hearing submissions from Counsel on 27 October 2017, after publication of the Judgment, the Court reserved all questions of costs and directed that any written submissions on costs be filed by 9 November 2017.
[1]Higgins v Wilkinson [2017] VCC 1534
2 On 30 October 2017, the solicitors for the defendant wrote to the plaintiff’s solicitors stating, among other things, the following:
“We also put you on notice that we would be asking the Court to order the legal practitioner who signed the Proper Basis Certificate to pay the costs of and incidental to the proceeding on an indemnity basis. We have instructed Counsel to make that application.”
And later:
“To avoid incurring any further costs for our two clients would you please confirm by return email, that should Brianna fail to pay any costs ordered to be paid by her within 14 days of the amount of those costs being finalised then, in such case the lawyer who signed the Proper Basis Certificate agrees and promises to pay, personally, all costs ordered to be paid by Brianna Higgins in respect to these proceedings.
Further, we again put you on notice that upon the hearing of the application with respect to the payment of the costs an application will be made for an indemnity from the person who is the Legal Practitioner who signed the Proper Basis Certificate from your firm that is filed in these proceedings, to be made liable to pay all those costs under section 78A of the County Court Act 1958, on an indemnity basis, if it turns out the Brianna fails to pay those costs ordered to be paid.
Please confirm that agreement in writing on or before Friday 3 November 2017.”
3 Both parties did not oppose the Court making the costs orders proposed in paragraph 107 of the Judgment in this proceeding.
4 By 9 November 2017, I received:
(a) The plaintiff’s submissions as to costs (undated);
(b) The defendant’s submissions as to costs dated 8 November 2017.
5 In the defendant’s submissions as to costs, in addition to the orders foreshadowed in paragraph 107 of the Judgment, the defendant sought the following orders:
(c) The plaintiff and her instructing solicitors pay the defendant’s costs of and incidental to the proceeding on an indemnity basis; and
(d) The plaintiff and her instructing solicitors pay Barbara Hassall’s costs of and incidental to the proceeding on an indemnity basis.
6 I note that the plaintiff did not make any submissions in relation to Ms Hassall’s costs in the caveat proceeding.
7 Counsel for the plaintiff submitted that if such an application as foreshadowed above is to be pursued, as set out in the letter dated 30 October 2017 to the plaintiff’s solicitor, the Court should give directions for the filing by the defendant of the application and a supporting affidavit or affidavits, and by the plaintiff and/or the plaintiff’s solicitor of any affidavit or affidavits in opposition. The procedure should be consistent with the Orders made in Gibb v Gibb.[2] Counsel for the defendant acknowledged that the plaintiff’s solicitor ought to be given the opportunity to defend themselves.
[2][2015] VSC 35
8 Accordingly, I take the view that it is unnecessary for the defendant to file an application as it has already indicated the orders it seeks both in a letter dated 30 October 2017 and in the defendant’s submissions as to costs dated 8 November 2017. I will order that the defendant file and serve any supporting affidavits by Friday, 2 February 2018 and the plaintiff or the plaintiff’s solicitors file and serve any affidavit or affidavits in opposition by 16 February 2018.
9 I will hear the application on 23 February 2018.
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