In the matter of Leys (No 2)

[2000] VSC 187

SUPREME COURT OF VICTORIA
COMMERCIAL & EQUITY DIVISION	Not Restricted

No. 6939 of 1999

IN THE MATTER of the Will of IAN HENRY LEYS, late of "Hyde Park", Burnbank, Victoria, Grazier deceased

DAVID CHARLES EDMONSTON and GEOFFREY ARTHUR FORSTER (who sue as Executors of the Will and Trustees of the Estate of the above named deceased.)	Plaintiffs
v
FRIENDS OF HENRY GEORGE INCORPORATED and Ors	Defendants

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2000
DATE OF JUDGMENT:	3 May 2000
CASE MAY BE CITED AS:	IMO Leys (No. 2)
MEDIUM NEUTRAL CITATION:	[2000] VSC 187

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M. Pascoe	Ian McMillan
The First Defendant appeared on his own behalf
The Second Defendant appeared on his own behalf
The Third Defendant appeared on his own behalf

HIS HONOUR:

1. In these proceedings the executors of the will of the testator, Ian Henry Leys, by originating motion filed on 21 September 1999 sought for the court to answer a number of questions concerning the proper interpretation of the will of the testator and also arising out of the administration of the estate of the testator.

1. Two of the questions, namely questions 1 and 4, concerned two construction points relevant to the will, and whether, having regard to the terms of parts of clause 6 of the will, there had been a valid devise of parts of the estate of the deceased.  The other questions, which were posed to the court in the alternative, questions 2 and 3, concerned whether that part of the estate of the deceased known as Mine Plain, and which was subject to a charge being a registered mortgage, whether the devise of that part of the deceased's estate should bear the burden of the mortgage or whether it should be borne from the residue of the testator's real and personal estate.

1. This day I delivered my judgment in the proceedings and answered each of the four questions posed for the court's consideration, and I have made orders relevant to the answer to those questions.  I will not set out again the answers that I gave in my written judgment and which are the subject of the orders.

1. Following the delivering of my judgment and the making of those orders, counsel for the plaintiffs has sought an order that the defendants, other than the first defendant, pay the plaintiffs' costs of the proceedings to Leys be taxed in default of an agreement, and that those costs be paid out of such part of the estate of the deceased to which they were entitled, namely that part of the estate as devised pursuant to clause 6 of the will.

1. In support of his submission made on behalf of the executors, there was tendered letters which were written to each of the defendants, other than the first defendant, setting out what was said to be advice received by the executors at the time that the letters were written, namely 28 February 2000, and stating in substance to each of those defendants, being the defendants other than the first defendant, that that was the advice that the executors had received, and in the light of that did they still wish these proceedings to be continued for the determination and decision of the court? In answer to those letters, the second defendant wrote a letter to the plaintiffs' solicitors dated 28 February 2000 challenging in particular that part of the advice said to be received by the executors relevant to whether the gift of Mine Plain should bear the burden of the charge, being the mortgage over that part of the estate of the deceased, or whether it should be borne from the residue of the testator's real and personal estate.  In consequence the proceedings have continued to conclusion before the court.

1. In substance on behalf of the defendants, other than the first defendant, Mr Russell Cheesman, who was their spokesman, has put that these matters were needed to be determined by the court, that they have been successful on some matters and unsuccessful on others, and that the costs of the plaintiffs', the executors, should be borne out of the estate.

1. The discretion which is vested in this court as to costs is that vested in the court pursuant to s.24(1) of the Supreme Court Act. That section vests a wide discretion in the court as to a question of costs which must be exercised judicially. In my view, notwithstanding the letters that were written on behalf of the plaintiffs to the defendants, other than to the first defendant on 4 February 2000, it was necessary and appropriate for the plaintiffs in the proper and due administration of the estate of the deceased, to have determined not only the questions as to the validity of the gifts of Mine Plain and allotment 62A, but also the matter as to which part of the estate, also as to whether Mine Plain should bear the burden of the mortgage, or whether it should be borne out of residue.

1. It was appropriate for the plaintiffs to pursue the proceedings, and even had the defendants not resisted the proceedings, in my view it would have been necessary and appropriate for these proceedings to be instituted and continued.

1. The gift to the defendants, other than the first defendant, is a gift to two persons for their lives and thereafter to some other persons, one of whom was at the time of the commencement of the proceedings a minor, and who was represented by one of the other defendants before the court pursuant to the order that I have referred to in my judgment.

1. In such proceedings such as this, it is usual for the court to order that the costs of the executors, where it is appropriate and necessary for them to bring such proceedings as this, to be borne out of the estate of the Leys deceased.  Circumstances would need to be clearly shown to me to warrant the court ordering that the costs of the plaintiffs be borne out of a specific part of the estate.

1. In my view the letters written to the defendants, other than the first defendant, do not constitute such circumstances as should cause that part of the estate alone to bear the costs of the plaintiffs in these proceedings.

1. Accordingly, the view that I have reached is that the costs of the plaintiff ought to be taxed on a basis of as between solicitor and client and paid out of the estate of the deceased.  Accordingly, I order that the plaintiffs' costs of the proceedings be taxed as between solicitor and client and paid out of the estate of the deceased.

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