In the Estate of Joan Gwen Talent deceased

[2019] ACTSC 261

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the Estate of Joan Gwen Talent deceased

Citation:

[2019] ACTSC 261

Hearing Date:

30 August & 6 September 2019

DecisionDate:

19 September 2019

Before:

Crowe AJ

Decision:

See [15]

Catchwords:

COSTS – Whether the first respondent should pay the cost of the Application in Proceeding – where applicant was granted orders sought – where attempts were made by the applicant prior to hearing to resolve dispute by way of an undertaking – first respondent to pay the applicant’s costs of the application

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 3066

Cases Cited:

Latoudis v Casey (1990) 170 CLR 534

Parties:

Nadia Joan Talent (Applicant)

John James Talent (First Respondent)

Representation:

Counsel

HL Donohoe SC & D A Moujalli (Applicant)

T Crispin (First Respondent)

Solicitors

Gil-Jones Barker (Applicant)

Ray-Swift Moutrage & Associates (First Respondent)

File Number:

PRO 59 of 2019

Crowe AJ

1. Ms Joan Gwen Talent died on 8 August 2018. In her last will, dated 15 March 2018, she appointed her daughter as her executor (the applicant). In that will she did not leave anything to her son John Talent (the first respondent). The principal asset of the estate is the deceased’s former home in Ainslie. The first respondent had resided with his mother in the home for some years before her death.

1. By March 2019 it became clear that the first respondent proposed to make a claim under the Family Provisions Act 1969 (ACT) (Family Provisions Act). Thereafter there was considerable correspondence between the solicitors for the respective parties. This appears to reflect a deterioration in the relationship between the applicant and the first respondent.

1. On 7 June 2019, the first respondent lodged a caveat over the title to the Ainslie property. The nature of the interest claimed was specified as: “John Talent is living in the property and intends to commence proceedings under Family Provisions”.

1. On 31 July 2019, the first respondent lodged a caveat against distribution pursuant to r 3066 of the Court Procedures Rules 2006 (ACT) (CPR).

1. On 16 August 2019, the solicitor for the applicant wrote to the first respondent’s solicitor pointing out various difficulties with the caveats. The letter advised that, notwithstanding those difficulties, the applicant was, in return for the removal of the caveats, prepared to give an undertaking not to distribute the estate pending settlement negotiations or proceedings under the Family Provisions Act should they become necessary.

1. There was no response to that letter, and following a further warning letter on
   20 August 2019 the applicant filed an Application in Proceeding (the Application) on
   23 August 2019 substantively seeking orders for the removal of the caveats. In her supporting affidavit, sworn on 22 August 2019, the applicant repeated her willingness to refrain from distributing the estate pending the resolution of the first respondent’s
   Family Provision Act claim. Indeed, she gave a formal undertaking to that effect in her affidavit.

1. The Registrar-General of the Australian Capital Territory was appropriately joined as second respondent to the Application. The Registrar-General filed a submitting Notice of Intention to Respond, except as to costs.

1. The Application was returned before me on 30 August 2019. I determined that the real property caveat was seriously defective and made an order for its removal. In relation to the probate caveat, it did seem to me that there was some force in the submissions made on behalf of the applicant that the caveat permitted by the rules went further than that which was authorised by the Administration and Probate Act 1929 (ACT). However, it seemed to me that it was not necessary to decide that issue having regard to the undertaking given by the applicant. In the circumstances the caveat served no useful purpose. I ordered that it should be removed.

1. I reserved the question of costs and provided the parties with the opportunity to make written submissions. The applicant had indicated that she would be seeking an order that the first respondent’s solicitor should pay the costs of the Application. I granted the parties liberty to apply and re-listed the matter for directions on 19 September 2019.

1. The applicant exercised the liberty to apply and relisted the matter on
   6 September 2019. By that time she had decided that she did not wish to pursue the costs application against the first respondent’s solicitor. She sought to have the question of costs determined on the more conventional basis that the unsuccessful party (the first respondent) should pay the costs. Her counsel handed up written submissions in support of that application. Counsel for the first respondent argued that he was not in a position to respond on that day. I therefore directed a further timetable for written submissions from the first respondent, and by way of reply from the applicant. The Court has now received those submissions.

1. The applicant submits that having regard to all of the circumstances the appropriate order is that the first respondent pay the applicant’s costs of the Application. The first respondent argues that the applicant was not wholly successful because the Court did not decide the issue raised as to the true nature of the caveat against distribution permitted under r 3066 of the CPR. He submits that the appropriate order is that the first respondent pay half of the applicant’s costs of the Application.

1. I am not persuaded by the first respondent’s argument. The first respondent was given a clear opportunity to ensure that the estate was not distributed pending his
   Family Provision Act claim by the undertaking which the applicant proposed in the
   16 August 2019 letter from her solicitor. Acceptance of that undertaking would have avoided the need for the Application. Rather than adopt that course the first respondent maintained his opposition to the removal of the caveats and required the issue to be determined by the Court.

1. In Latoudis v Casey (1990) 170 CLR 534 at 567, McHugh J said:

... The rationale of the order (for costs) is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred.

1. In my view it is entirely just and reasonable having regard to the circumstances of this matter that the first respondent should reimburse the applicant for the cost liability incurred in relation to the Application.

The Orders of the Court

1. Accordingly, the Order of the Court is as follows:

(1)     The first respondent is to pay the applicant’s costs of the Application in Proceeding dated 23 August 2019.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Crowe.

Associate:

Date: 19 September 2019