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Keane v Corns

Keane v Corns

Case [2021] VSCA 223 20 August 2021

Testator’s Family Maintenance

Appeal

Costs

Succession Law

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0077

LEE ANNE KEANE	Applicant
v
LOIS ALDA CORNS (who is sued as the Executor of the Estate of CARL ALBERT JOHN SCHLINK (also known as CARL JACKSON) deceased	Respondent

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JUDGES:	BEACH, SIFRIS and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 August 2021
DATE OF JUDGMENT:	20 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 223
JUDGMENT APPEALED FROM:	[2020] VSC 180; [2020] VSC 417 (McMillan J)

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TESTATOR’S FAMILY MAINTENANCE – Application for leave to appeal – Application brought by adult daughter of deceased – Estate consisting of suburban property, where deceased lived with domestic partner for 20 years, and share portfolio – Bequest of $50,000 to adult daughter, with balance of estate left to domestic partner – Whether deceased made adequate provision for adult daughter’s proper maintenance and support – Significant contributions by domestic partner – Daughter having care of, and responsibility for, son with disability – Milillo v Konnecke [2009] NSWCA 109 referred to – Whether appropriate to make a Crisp order – Primary judge dismissed daughter’s application for further provision – Whether judge erred as to facts or principle – Whether judge’s decision plainly unjust or plainly unreasonable – Proposed grounds of appeal against judge’s dismissal of proceeding having no real prospect of success – Application for leave to appeal against judge’s dismissal of proceeding refused.

PRACTICE AND PROCEDURE – Costs – Appeal – Judge ordering unsuccessful party to pay indemnity costs of whole proceeding when no such order sought by successful party – Denial of procedural fairness – Whether indemnity costs should have been ordered from time of unsuccessful party’s refusal of open offer made by successful party – Offer not stated to have costs consequences if refused – Hazeldene’s Chicken Farm v Victorian WorkCover Authority (2005) 13 VR 435 applied – Appeal allowed – Costs order varied – Unsuccessful party ordered to pay costs of proceeding on standard basis, rather than indemnity basis.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J D Catlin	Armstrong Legal
For the Respondent	Mr R C Wells	Jansen, Walsh & Grace

BEACH JA
SIFRIS JA
WALKER JA:

In August 2017, Carl Schlink, who had been diagnosed with cancer, died. He was survived by his adult daughter (‘the plaintiff’) and his domestic partner of some 20 years (‘the defendant’). In December 2017, probate of the deceased’s will (a will made in June 2016) was granted to the defendant. Pursuant to the will, the deceased bequeathed a legacy of $50,000 to the plaintiff, and left the residue of his estate to the defendant.

As the trial judge described it, the value of the deceased’s estate was ‘modest’.[1] The estate consisted of a property in Boronia where the deceased and the defendant lived, and a share portfolio. In the inventory of assets filed for the grant of probate, these assets were respectively valued at $585,000 and $110,326.58.
[1]Re Schlink; Keane v Corns [2020] VSC 180 (‘Primary Reasons’).

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 Keane v Corns

Details

AGLC: Keane v Corns [2021] VSCA 223
Case: [2021] VSCA 223
Decision Date: 20 August 2021

CaseChat Overview and Summary

In Keane v Corns, the deceased left an estate consisting of a suburban property and a share portfolio. The deceased had lived with their domestic partner for 20 years and left a bequest of $50,000 to their adult daughter, with the balance of the estate left to the domestic partner. The daughter, who had care of and responsibility for her son with a disability, applied for leave to appeal the primary judge's dismissal of her application for further provision under the Testator’s Family Maintenance Act 1960. The daughter argued that the deceased had not made adequate provision for her proper maintenance and support.

The court had to determine whether the deceased had made adequate provision for the daughter’s proper maintenance and support, considering the contributions made by the domestic partner. It also needed to decide whether it was appropriate to make a Crisp order, given the circumstances. Additionally, the court had to consider whether the primary judge had erred in fact or principle, or whether their decision was plainly unjust or unreasonable. The court also had to assess the proposed grounds of appeal against the judge’s dismissal of the proceeding, which had no real prospect of success.

The court found that the primary judge had not erred in dismissing the daughter’s application for further provision. The judge had considered all relevant factors, including the domestic partner’s significant contributions. The court held that the deceased had made adequate provision for the daughter’s proper maintenance and support. The appeal against the judge’s dismissal of the proceeding was refused. Regarding the costs, the court found that the primary judge’s order for the unsuccessful party to pay indemnity costs was improper as it was not sought by the successful party and denied procedural fairness. The appeal was allowed, and the costs order was varied so that the unsuccessful party was ordered to pay costs on a standard basis.

Orders