Hookway v Hookway (No 2)
[2017] TASFC 8
•6 September 2017
[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 trust written into the July will also fails.
It is difficult to see how the testamentary trust can survive the orders of Estcourt J as affirmed by the Full Court. There should be no portion of the estate's assets which are administered under the testamentary trust. It is inappropriate to make an order that costs be paid from any such assets.
However the appellant submits that the trust continued, despite the court's order, by reason of the division of legal and beneficial titles in property. It is said that that remains the case unless and until transferred by the testamentary trustees to the Public Trustee. We disagree. If the so-called trustees are the registered proprietors of any land as a result of the now revoked grant of probate, it is true that they must hold that land as trustees, but they do not hold it as trustees of the invalid testamentary trust.
Counsel for the appellant relied on the case of Re Buckton; Buckton v Buckton [1902] 2 Ch 406 at 414 in support of a proposition that when a court is asked to have some question determined which has arisen in the administration of a trust, the costs of the parties will necessarily have been incurred for the benefit of the trust and should be paid out of the estate.
Counsel for the respondent contends that the appeal is properly described as adversarial and that costs should follow the event.
The proceeding before Estcourt J and on appeal concerned whether the testator lacked the testamentary capacity to make the July will. The contest between the parties on that issue may be described as adversarial. We see no reason to categorise the proceeding before Estcourt J or on appeal as one to resolve a question which has arisen in the administration of a trust.
Under s 12(2) of the Supreme Court Civil Procedure Act 1932, costs are in the discretion of the Court. Rule 672(6) of the Supreme Court Rules 2000 provides:
"(6) The Full Court may make any order as to the whole or any part of the costs of an appeal as appears to the Full Court to be just, but, unless some other order is made, the costs of an appeal follow the event."
In Watson v Ralph (1982) 148 CLR 646 at 645, Gibbs CJ (with whom Mason, Wilson and Brennan JJ agreed), referred to the costs of an appeal in a dispute about a will. His Honour took what he described as "the rather exceptional course" by ordering that costs be paid out of the estate. He did so because of the difficulties caused by the will being badly drawn and the fact that the appellants were encouraged to appeal from the Full Court of the Supreme Court of Victoria by having had their arguments accepted at first instance.
Further, in Murdocca v Murdocca (No 2) [2002] NSWSC 505 at [78], Campbell J said:
"… the principles for costs on appeal are different, less sympathetic to payment of the costs from the estate than the principles applied at first instance …".
We see no reason why, in this appeal, the Court should make an order which departs from the general rule that costs follow the event. The appeal was adversarial in nature. The appellant sought to have reversed a first instance judgment under which the testamentary trust would cease to operate. The testamentary trust operated to advantage the appellant's children by applying to all three of them, but to only one child of the respondent. We agree with the submissions of counsel for the respondent that the appellant conducted his appeal in an adversarial manner. There are no special or exceptional circumstances which justify an order that the costs be paid other than by the appellant. This was not a case in which a trustee sought the assistance of the Court.
For the foregoing reasons we consider that the appellant should pay the respondent's costs of the appeal personally and not be entitled to be indemnified by the estate of the late Peter Hookway.
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