Klement v Randles - [2010] VSCA 336

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2009 3702

JIRI KLEMENT	Applicant
	v
PETER JAMES RANDLES	Respondent

S APCI 2009 3808

JIRI KLEMENT	Appellant
	v
PETER JAMES RANDLES	Respondent

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JUDGES	MAXWELL P and EMERTON AJA
WHERE HELD	MELBOURNE
DATE OF JUDGMENT	17 December 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 336

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PRACTICE AND PROCEDURE – Costs – Appeal – Respondent executor wholly successful – Costs of executor to be paid out of trust funds, unless otherwise ordered – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 63.26 – Applicant without means – Respondent’s costs to be borne by estate – Consideration of discretion to order indemnity costs – Discretion not exercised.

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APPEARANCES:
The parties relied on written submissions filed by the Applicant/Appellant in person and by Lennon Mazzeo Lawyers on behalf of the Respondent.

THE COURT:

On 25 June 2010, the Court delivered its reasons and made orders dismissing Reverend Klement’s appeal in proceeding No 3808 of 2009 (‘the executor proceeding’) and refusing leave to appeal in proceeding No 3702 of 2009 (‘the possession proceeding’). Both matters arose from the administration by the respondent of the estate of Reverend Klement’s mother, Ludmilla Klement, also known as Sister Francis Klement.

The respondent now seeks an order in each proceeding that Reverend Klement pay his costs. In the executor proceeding, he seeks an order that those costs be paid on an indemnity basis. Further, the respondent seeks orders that, insofar as Reverend Klement does not pay those costs, the respondent is entitled to recover his costs from the undistributed residuary estate of Ludmilla Klement in accordance with r 63.26 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

Reverend Klement has filed written submissions resisting the orders for costs sought by the respondent in both matters and submitting that the respondent should pay ‘all costs’.

The Supreme Court (General Civil Procedure) Rules 2005 (Vic) make provision for the costs of executors. Rule 63.26 provides that unless the Court otherwise orders, a party who sues or is sued as trustee is entitled to the costs of the proceeding out of the fund held by the trustee insofar as the costs are not paid by any other person. Rule 63.33 provides that where a party who is sued as trustee is entitled to be paid costs out of any fund that the party holds in that capacity, the costs shall, unless the Court otherwise orders, be taxed on a solicitor and client basis.

Brief background

Ludmilla Klement made a will dated 30 May 2002 (the ‘Will’) in which she appointed the respondent as executor and trustee of her estate. She died on 27 July 2005 and, on 8 May 2006, the respondent obtained a grant of probate of her estate.

Under the terms of the Will, Reverend Klement was given a life interest in Mrs Klement’s property at 105 Collier Crescent, West Brunswick (the ‘property’) on the condition that he pay all rates and taxes and other outgoings…

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 Klement v Randles

Details

AGLC: Klement v Randles [2010] VSCA 336
Case: [2010] VSCA 336
Decision Date: 17 December 2010

CaseChat Overview and Summary

Klement v Randles involved a dispute between the applicant, Klement, and the respondent, Randles, who was the executor of a deceased estate. The applicant sought costs from the respondent, arguing that the executor had been wholly successful in the proceedings. The matter was heard in the Supreme Court of Victoria. The central legal issue was whether the respondent, as the executor, was entitled to costs from the applicant, given that the applicant was without means and the respondent had been wholly successful. An additional consideration was whether the court should exercise its discretion to order indemnity costs.

The court examined the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), particularly rule 63.26, which provides that the costs of an executor are to be paid out of the trust funds, unless the court orders otherwise. The court noted that the applicant was without means and that the executor had been wholly successful in the proceedings. Given these circumstances, the court ruled that the executor’s costs should be borne by the estate. However, the court also considered whether it should exercise its discretion to order indemnity costs. After weighing the factors, the court determined that the discretion should not be exercised in this instance. The court concluded that the executor was entitled to costs from the estate but did not order indemnity costs against the applicant.

The court's decision was that the executor's costs would be paid from the estate, but no indemnity costs would be ordered against the applicant. This ruling ensures that the executor's costs are appropriately covered while also taking into account the applicant's lack of means.

Orders