| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
IN THE MATTER of Part IV of the Administration and Probate Act 1958
- and –
IN THE MATTER of the estate of Margaret Eileen Carn, deceased
S CI 2009 05569
| PETER CHARLES MOERTH | Plaintiff |
| v | |
| PAUL AUGUSTUS MOERTH and ANNE MARGARET MacBEAN (who are sued as the executors of the estate of Margaret Eileen Carn, deceased) | Defendants |
S CI 2010 4323
| PAUL AUGUSTUS MOERTH | Plaintiff |
| v | |
| ANNE MARGARET MacBEAN | Defendant |
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JUDGE: | GARDINER As J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 March 2011 | |
DATE OF JUDGMENT: | 22 June 2011 | |
CASE MAY BE CITED AS: | IMO Moerth (No.2) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 275 | Revised 23 June 2011 |
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FAMILY PROVISION – Costs – whether unsuccessful plaintiff should be ordered to pay costs of the estate – plaintiff ordered to pay costs.
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APPEARANCES: | Counsel | Solicitors |
| In S CI 2009 5569 | ||
| For the Plaintiff | Mr R Phillips | Callea Pearce Lawyers |
| For the Defendants | Mr P Barton | Buller Mcleod Lawyers |
| In S CI 2010 4323 | ||
| For the Plaintiff | Ms C Sparke | Slater & Gordon |
| For the Defendant | Mr P Barton | Buller Mcleod Lawyers |
HIS HONOUR:
The plaintiffs in these two proceedings made application under Part IV of the Administration and Probate Act 1958 (“the Act”) for provision out of the estate of their late mother, Margaret Carn.
On 4 March 2011, I delivered judgment. The plaintiff in proceeding No. S CI 2009 5569, Peter Moerth, was unsuccessful in his application. The plaintiff in proceeding No. S CI 2010 4323, Paul Moerth, was given further provision in the form of a legacy of $25,000. In addition, he was given a life interest in a property to be purchased from the proceeds of sale of the home owned by his mother at Buckingham Street in North Richmond.
Towards the end of my judgment, I indicated that I would hear the parties on the question of costs after they had had an opportunity to consider my reasons. I expressed the tentative view that, even though Peter had not been successful in his application, the costs of the proceedings should be paid by the estate.
In these reasons, I will continue to refer to the respective plaintiffs by their first names only for reasons of convenience and without intending any disrespect.
On 29 March 2011, a further hearing took place at which the parties made submissions as to what orders should be made for costs in these proceedings. Ms Sparke, counsel for Paul, contended that Peter’s claim had no reasonable prospects of success and that he should pay the estate’s costs of the proceeding. Mr Phillips of Counsel, who appeared on behalf of Peter, submitted that Peter should have his costs from the estate and that he should not be liable in any way for the estate’s costs.
Mr Barton of Counsel, who appeared on behalf of the estate, did not appear at the hearing for costs but filed a…
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- AGLC
- IMO Moerth (No.2) [2011] VSC 275
- Case
- [2011] VSC 275
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the plaintiff, having been unsuccessful in their claim, should be ordered to pay the costs of the estate. The court also had to determine the allocation of costs between the parties in two related proceedings.
The court found that the plaintiff's claim was unjustified and that the defendants were entitled to their costs on a trustee basis. The court held that the plaintiff should be ordered to reimburse the estate for the defendants' costs, as well as any costs incurred by the executors that were discrete from those ordered. Additionally, the court ordered that the plaintiff's costs in the second proceeding were to be paid on a party/party basis out of the estate, while the defendants' costs were to be paid on a trustee basis. The court emphasised that if the plaintiff failed to pay any part of the defendants' costs as ordered, the defendants' costs of the proceeding would be retained out of the estate.
The court's final orders provided for the defendants' costs in the first proceeding to be paid out of the estate on a trustee basis, with the plaintiff reimbursing the estate for the costs. In the second proceeding, the plaintiff's costs were to be paid on a party/party basis out of the estate, and the defendants' costs were to be paid on a trustee basis. The court also provided that if the plaintiff failed to pay any part of the defendants' costs, those costs would be retained out of the estate.
Orders
Orders of the court
In proceeding No. S CI 2009 05560:
1. The defendants’ costs of the proceeding are to be paid out of the estate on a trustee basis,
2. The plaintiff is to reimburse the estate for the costs mentioned in paragraph 1 for an amount equal to the party/party costs of the estate.
3. If the plaintiff fails to pay any part of the defendant’s costs so ordered, then the costs expenses of the defendants of and incidental to the proceeding shall be had and retained out of the estate.
4. To the extent that Paul Moerth has incurred any costs in the proceeding which are discrete to those which are mentioned in paragraph 2, they are to be paid out of the estate on a trustee basis.
In proceeding No. S CI 2010 4323, I order as follows:
1. The costs of the plaintiff are to be paid on a party/party basis out of the estate.
2. The defendant’s costs of the proceeding are to be paid out of the estate on a trustee basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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