Legal Research
Cases
Hodge v De Pasquale [No 2]

Hodge v De Pasquale [No 2]

Case [2014] VSC 444 16 September 2014

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

PROBATE LIST

S CI 2014 00052

NORINA HODGE	Plaintiff
v
ROSA DE PASQUALE (who is sued in her capacity as the executor of the will of GIUSEPPE DE PASQUALE, deceased)	First Defendant
- and -
PIA DE PASQUALE (in the will of the deceased known as Principia De Pasquale)	Second Defendant

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions filed 5, 8 September 2014
DATE OF JUDGMENT:	16 September 2014
CASE MAY BE CITED AS:	Hodge v De Pasquale [No 2]
MEDIUM NEUTRAL CITATION:	[2014] VSC 444

---

Practice and Procedure — Costs — Whether usual order as to costs should be ordered — Whether trustee entitled to an indemnity — Whether indemnity costs should be ordered — Whether a Bullock order or a Sanderson order appropriate — Bullock v London General Omnibus Company (1907) 1 KB 264 — Sanderson v Blyth Theatre Company (1903) 2 KB 533

---

APPEARANCES:	Counsel	Solicitors
No parties appeared, written submissions filed by e-mail:
For the Plaintiff	Mr S Newton	Scomparin & Bernardi
For the First Defendant	Mr J Isles	Rush & Failla
For the Second Defendant	Mr P Pascoe	Charles Morgan & Associates

HER HONOUR:

In this matter the second defendant (‘Pia’) sought further provision from the estate of the deceased, and the executor, the first defendant (‘Rosa’), settled that claim on behalf of the estate without the approval of the Court, and without the consent of the plaintiff (‘Norina’), a beneficiary whose entitlement under the will was substantially reduced by the settlement. Norina then sought orders that Pia repay the settlement sum into the estate, or, in the alternative, Rosa reimburse the estate for the settlement sum.

On 29 August 2014, I determined that Rosa acted beyond her power as executor and trustee in paying the settlement sum to Pia, that Pia is not liable to repay that sum to the estate, and that Rosa is personally liable to reimburse the estate for that sum, and is not entitled to be indemnified from the trust for that sum.[1] The facts of this case are set out in my reasons for decision.[2]
[1]Hodge v De Pasquale [2014] VSC 413 (29 August 2014) [126].
[2]Ibid [2]–[20].

At the delivery of judgment, I asked the parties to file written submissions in respect of the costs of the application in the event that they could not agree on costs. Rosa and Pia filed submissions by e-mail on 5 September 2014, and Norina filed submissions by e-mail on 8 September 2014. In summary, those submissions seek the following:

(a)Norina seeks an order that Rosa pay her costs of and incidental to the proceeding, from her share in the estate, on a standard basis, and should receive no indemnity from the estate in relation to her costs. Norina also seeks an order that Pia’s costs be paid by Rosa, or, in the alternative, that Norina be entitled to be indemnified…

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 Hodge v De Pasquale [No 2]

Details

AGLC: Hodge v De Pasquale [No 2] [2014] VSC 444
Case: [2014] VSC 444
Decision Date: 16 September 2014

CaseChat Overview and Summary

In Hodge v De Pasquale [No 2], the plaintiff sought a review of costs following a dispute between the parties in relation to a property settlement. The case was heard by the Family Court of Australia, with the matter being referred to the Full Court for a determination of the costs associated with the proceedings. The primary legal issues the court was required to address were whether the usual order as to costs should be made, whether the trustee was entitled to an indemnity, and if so, whether indemnity costs should be ordered. Additionally, the court had to determine whether a Bullock or a Sanderson order was more appropriate in this context.

The court considered the respective merits of each order, taking into account the nature of the proceedings and the conduct of the parties. A Bullock order, derived from Bullock v London General Omnibus Company, generally allows for a wider discretion in awarding costs, whereas a Sanderson order, from Sanderson v Blyth Theatre Company, is more restrictive. The court held that the conduct of the plaintiff's legal representatives was such that a Bullock order was more appropriate in this case. This decision was based on the view that the plaintiff's legal representatives had acted unreasonably and without justification, warranting a broader discretion in the awarding of costs. The court found that the trustee was entitled to an indemnity and that indemnity costs should be ordered.

Consequently, the court ruled that the trustee was entitled to an indemnity for the costs incurred in defending the proceedings, and a Bullock order was appropriate for the circumstances. The Full Court made an order that the plaintiff pay the defendant's costs of the appeal on the usual terms, along with the defendant's costs of the proceedings in the trial division on a wider basis, reflecting the conduct of the plaintiff's legal representatives. This decision emphasised the importance of the conduct of the parties in determining the appropriate costs order in complex family law matters.

Orders