Hookway v Hookway (No 2) - [2017] TASFC 8

[2017] TASFC 8

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Hookway v Hookway (No 2) [2017] TASFC 8

PARTIES:  HOOKWAY, Stirling Mathew
  v
  HOOKWAY, Tamzin Peta

FILE NO: 3709/2016
JUDGMENT

APPEALED FROM: Hookway v Hookway [2017] TASFC 4

DELIVERED ON:  6 September 2017
DELIVERED AT:  Hobart
HEARING DATE:  Written Submissions
JUDGMENT OF:  Blow CJ, Martin and Marshall AJJ

CATCHWORDS:

Succession – Probate and letters of administration – Costs – Other cases – Unsuccessful appeal against revocation of grant of probate – Adversarial proceeding – Appellant seeking to benefit his children.

Watson v Ralph (1982) 148 CLR 646; Murdocca v Murdocca (No 2) [2002] NSWSC 505, referred to.
Aust Dig Succession [1167]

REPRESENTATION:

Counsel:
           Appellant:  T P Mitchell
           Respondent:  C Groves
Solicitors:
           Appellant:  Mills Oakley Lawyers
           Respondent:  Dobson, Mitchell Allport

Judgment Number: [2017] TASFC 8
Number of paragraphs: 14

Serial No 8/2017
File No 3709/2016

STIRLING MATHEW HOOKWAY v TAMZIN PETA HOOKWAY (NO 2)

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
MARTIN AJ
MARSHALL AJ
6 September 2017

Order of the Court

That the appellant pay the respondent's costs of and incidental to the appeal.

Serial No 8/2017
File No 3709/2016

STIRLING MATHEW HOOKWAY v TAMZIN PETA HOOKWAY (NO 2)

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
MARTIN AJ
MARSHALL AJ
6 September 2017

In Hookway v Hookway [2017] TASFC 4, the Full Court dismissed an appeal from the judgment of Estcourt J: Hookway v Hookway [2016] TASSC 28. The successful respondent now applies for her costs of the appeal. The appellant seeks an order that "each party's costs of the appeal should be paid from a portion of the estate assets administered under the testamentary trust".
The parties to the appeal were named as executors of the estate of their late father, Peter Hookway, and trustees of a testamentary trust purportedly established by an invalid will which was dated 23 July 2006 ("the July will").
Estcourt J made orders on 23 November 2016 revoking probate of the July will and granting to the Public Trustee letters of administration of the estate of the late Peter Hookway with the will of the late Peter Hookway dated 13 June 2006 annexed ("the June will"). The June will did not include a testamentary trust.
The respondent contends that an immediate effect of the orders made on 23 November 2016 was that the appellant and the respondent were removed as executors of the estate and as trustees of the trust. The respondent submits that the trust was held to be void by operation of the 23 November 2016 order. The appellant contends that the trust is not void, and still exists. The respondent submits that the validity of the trust depends on the validity of the settling testamentary instrument, including the settlor's testamentary capacity. The respondent says the court found (as upheld on appeal) that Mr Peter Hookway lacked capacity to make his July will so it follows that the testamentary…

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 Hookway v Hookway (No 2)

Details

AGLC: Hookway v Hookway (No 2) [2017] TASFC 8
Case: [2017] TASFC 8
Decision Date: 6 September 2017

CaseChat Overview and Summary

The parties were the executor of the estate of the late Mr. Hookway and the beneficiaries of his will. The dispute concerned an unsuccessful appeal against the revocation of a grant of probate. The matter was heard by Blow CJ, Martin and Marshall AJJ.

The primary legal issue before the court was whether the unsuccessful appellant should be ordered to pay the costs of the respondents in the appeal proceedings. The court was required to consider the principles governing the award of costs in probate matters, particularly where an adversarial proceeding had been initiated and the appellant was seeking to benefit his own children.

The court reasoned that the appeal was an adversarial proceeding, not a mere administrative one. It noted that the appellant had sought to benefit his children by pursuing the appeal, and that the costs incurred by the respondents were substantial. Applying the general rule that costs follow the event in adversarial litigation, and considering the appellant's personal interest in the outcome, the court determined that the appellant should bear the costs of the appeal.

The court ordered that the appellant pay the costs of the respondents in the appeal.

Orders