KIEREN INNES-IRONS and EMILIE HARDING COLLISS	Plaintiffs
v
ROGER CRANFIELD FORREST (who is sued as the Administrator of the Estate of the late James Graeme Forrest)	Defendant

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	Written Submissions dated 12 and 16 January 2017
DATE OF JUDGMENT:	25 January 2017
CASE MAY BE CITED AS:	Innes-Irons & Anor v Forrest (Costs)
MEDIUM NEUTRAL CITATION:	[2017] VSC 10

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PRACTICE AND PROCEDURE – Costs – Unsuccessful application by defendant for summary judgment pursuant to s 62 of the Civil Procedure Act 2010 – Whether costs should follow the event or be costs in the proceeding – Whether defendant as Administrator of the estate of the deceased should be entitled to indemnity out of the estate in respect of his costs of the application – The plaintiffs’ costs of the defendant’s application ordered to be their costs in the proceeding and the question of the entitlement of the defendant to indemnity referred to the trial Judge – Justice Legislation Amendment (Succession and Surrogacy) Act 2014; Forsyth v Sinclair (No 2) [2010] VSCA 195; Briggs v Mantz (No 2) [2014] VSC 487; Towercom Pty Ltd v Fahour (No 4) [2013] VSC 585.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R A Edmunds	Bowlen Dunstan & Associates
For the Defendant	Mr S A Rowland	JKB Lawyers

HIS HONOUR:

Introduction

The defendant applied to have the plaintiffs’ claim dismissed on the grounds that the plaintiffs are not eligible persons within the definition of ‘eligible person’ in s 90(g) of the Administration and Probate Act 1958 (‘Act’), and that the plaintiffs’ claim has no real prospects of success. The application was made under ss 62 and 63 of the Civil Procedure Act 2010.

On 15 December 2016, I delivered judgment determining that the application should be dismissed. I held that the plaintiffs fall within the natural and ordinary meaning of the words of the definition of ‘eligible person’ in s 90(g) of the Act, and that, accordingly, there is a real as opposed to a fanciful prospect that at trial the plaintiffs will be found to be eligible persons.

The parties are at odds as to the appropriate costs order. The plaintiffs submit that their costs (on a standard basis) of the application for summary dismissal should be paid by the defendant personally and that he not be entitled to be indemnified out of the estate of the deceased in respect of those costs or his own costs of his application. The defendant submits the plaintiffs’ costs be paid by him on a standard basis and that he be entitled to an indemnity in respect of those costs and his own costs…

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 Innes-Irons v Forrest

Details

AGLC: Innes-Irons v Forrest (Costs) [2017] VSC 10
Case: [2017] VSC 10
Decision Date: 25 January 2017

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Innes-Irons v Forrest was heard, where the plaintiffs, Innes-Irons, pursued a claim against the defendant, Forrest, who was the Administrator of the estate of a deceased person. The dispute centred around the costs incurred by the plaintiffs in responding to the defendant's unsuccessful application for summary judgment under section 62 of the Civil Procedure Act 2010. The primary legal issues the court had to address were whether the costs incurred by the plaintiffs should be considered costs in the proceeding or costs that follow the event, and if the defendant, as the Administrator of the estate, was entitled to an indemnity out of the estate for his costs related to the application.

The court examined relevant statutory provisions and case law to determine the appropriate allocation of costs. It noted that under the Justice Legislation Amendment (Succession and Surrogacy) Act 2014, the costs incurred by the plaintiffs in defending the summary judgment application were to be treated as costs in the proceeding. The court also referred to previous cases such as Forsyth v Sinclair, Briggs v Mantz, and Towercom Pty Ltd v Fahour, which provided guidance on the treatment of costs in similar circumstances. The court concluded that the plaintiffs' costs should be their costs in the proceeding, and the question of whether the defendant was entitled to an indemnity out of the estate for his costs was to be decided by the trial judge.

The court ordered that the plaintiffs' costs of the defendant's application were to be their costs in the proceeding. Additionally, it referred the issue of whether the defendant, as the Administrator of the estate, was entitled to an indemnity out of the estate for his costs to the trial judge. This decision ensures that the plaintiffs' costs are appropriately categorised and that the matter of indemnity is addressed in the context of the overall proceedings.

Orders