Hill v Halliday (No 2)

[2004] VSC 55

SUPREME COURT OF VICTORIA

PRACTICE COURT

(Revised)

No. 7551 of 2003

ANTHONY JULIAN HALLIDAY	Plaintiff
v.
DAVID JOHN HILL AND OTHERS	Defendants

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JUDGE:	Mandie, J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 February 2004
DATE OF ORDER:	16 February 2004
MEDIUM NEUTRAL CITATION:	[2004] VSC 55

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Practice and Procedure – Costs – Costs orders in relation to Halliday v Hill & Ors (No. 1) [2003] VSC 509

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Verspaandonk	Pointon Partners
For the Second Defendant	In Person

HIS HONOUR:

1. In this proceeding the Court ordered on 19 December that the plaintiff be granted letters of administration with the will dated 10 July 1995 of the deceased Margaret Blanche Halliday annexed in respect of the estate of the said deceased, and by doing so rejected the contentions of the second defendant for the reasons then given that he should be permitted to proceed and apply for probate in the ordinary way, he being one of the executors named in the will.  The reasons given on that occasion should be read together with these reasons in relation to the question of costs.  On 19 December I adjourned the question of costs until today in order to give the second defendant an opportunity to put further material before the court, which he has done.  I have read that material and I have also read his written submissions and heard his argument.

1. The essence of the matter before the court is that the plaintiff has succeeded in his application to be granted letters of administration of the will and the second defendant has failed in his opposition to that application.  The second defendant again appeared in person today and made a number of arguments in support of the written submission that he filed.  The suggestion that there was some fraud which induced the order of Justice Byrne has no basis in my opinion on the material and I reject it.  The submission that there was a settlement which deprived the court of jurisdiction to make the orders which it has already made is also without any legal basis and I reject it.  In any event, the orders have been made and Mr Halliday can, as he understands, appeal if he wishes.

1. I do not consider that the plaintiff has frustrated anything as contended by Mr Halliday the second defendant.  In the great part the written submissions which the second defendant has put forward today are an attempt to re-litigate the issues which have already been decided.  To that extent they cannot be taken into account.  In addition there is an attack on the conduct of the plaintiff as administrator since the date of the orders of 19 December.  That attack is not based on any satisfactory evidence, but in any event is entirely irrelevant to the question of costs on this proceeding, as is any speculation about the ultimate value of the estate which may stem from decisions made by the administrator.  In my opinion, the court clearly has the power to make an order for costs and the ordinary rule would be that costs follow the event.

1. I am satisfied not only that that is the ordinary and usual rule, but it is an appropriate order to be made on this occasion.  I think that the second defendant should pay the plaintiff's costs of this proceeding, including reserved costs.  I note the second defendant's contention that the costs which were reserved on 15 December and 17 December should be excepted from any order for costs and I think that there is some substance in that submission.  The adjournments from that occasion to 19 December were not really caused by the second defendant.  I think that although the plaintiff should have his costs of those days out of the estate they should not be costs specifically payable by the second defendant to the exclusion of the other parties who benefit under the estate.

1. In his written submissions, the second defendant has put forward a number of orders which he says in the alternative should be made, and those orders appear at pp.9-10 of his written submissions.  The orders are not really alternatives to costs.  Most of them are argumentative and at best matters which might be raised on an appeal.  I therefore reject them and I refer specifically to the suggested orders no.1-8.  Paragraph 9 seeks an extension of time to comply with the orders made on 19 December on the basis that the beneficiaries have to do something to assist the second defendant to comply with the orders.  I am not persuaded that that has any basis either and I refuse to make such an order.

1. Paragraph 10 seeks an injunction against the administrator.  Such an application cannot be made on this occasion and there appears to be no justification for it, but even if there was it would have to be the subject of separate proceedings.  Likewise, paragraph 11.  I will not make any stays until further order which are sought in paragraph 12.  The second defendant offers an undertaking to appeal the orders and seeks a stay until further order of the Court of Appeal.  I reject that application.  If any stay is to be sought it will have to be sought from the Court of Appeal.

1. I am satisfied that the second defendant should pay costs other than the costs reserved on 15 and 17 December.  It was submitted on behalf of the plaintiff that those costs should be paid on an indemnity basis.  Among the matters relied upon as a basis for that submission was the very lengthy delay of the second defendant in applying for probate; the failure to take any remedial action when approached by the plaintiff's solicitor to carry out his duties and his failure to respond to the requests by the plaintiff; his failure to prove or renounce the will, having entered into consent orders on 9 October 2003, and his consequent failure to comply with the order of Justice Byrne to that effect; his failure to act in accordance with further requests by correspondence by the plaintiff's solicitors and his assertion, subsequently abandoned, and perhaps revived again today, I'm not sure, that there was some previous will which ought to be proved; his forcing the plaintiff to come back to court because of his failure to comply with previous orders; his opposition to the plaintiff's application and during the course of that his withdrawal of the contention that the earlier will should be proved and finally the request to the Court to permit him then to have his solicitor make an application for probate.  In addition to those matters, it is at least arguable that the second defendant has continued with the sort of bizarre conduct which was referred to on 19 December, evidence of which can be gleaned from the current written submission before the court and indeed the futile attempt, I think, on 5 January to have Justice Gillard as it were as an Appeal Court set aside orders which were made on 19 December.

1. I think, however, that I should disregard those last matters and look only at the conduct of the second defendant up to 19 December.  I am satisfied on that basis that the order for costs which should be made against the second defendant, having regard to the conduct referred to, should be on a solicitor and client basis.  I decline to make it on an indemnity basis which would reverse the onus of proof as to the reasonableness of costs, but it should be made on a solicitor/client basis.

1. I will therefore make the following orders: 

1)That the plaintiff's costs of and incidental to his application by summons dated 27 November 2003 including reserved costs (other than the costs reserved on 15 and 17 December 2003) be taxed on a solicitor/client basis and paid by the second defendant, and that otherwise the plaintiff's said costs be paid or retained out of the estate of the deceased.

2)That the plaintiff be authorised to retain out of any moneys otherwise payable to the second defendant from the estate of deceased the amount of the costs so payable by the second defendant to the plaintiff pursuant to this order.

3)That there be no order as to the defendants' costs of the proceeding.

(Discussion ensued re costs.)

1. I will place the written submissions of the parties on the file