Kuenen v Robert Leslie Hortin and Adrian Mark Bickford as Executor of the Estate of Late Leslie Mervyn Hortin
[2024] WASC 152 (S)
•7 JUNE 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KUENEN -v- ROBERT LESLIE HORTIN AND ADRIAN MARK BICKFORD as Executor of the Estate of LATE LESLIE MERVYN HORTIN [2024] WASC 152 (S)
CORAM: HILL J
HEARD: 17 MAY 2024
DELIVERED : 17 MAY 2024
PUBLISHED : 7 JUNE 2024
FILE NO/S: CIV 1670 of 2023
BETWEEN: PAUL VINCENT KUENEN
First Plaintiff
KANE MATTHEW KUENEN
Second Plaintiff
SHANE WILLIAM GARDNER as administrator of the estate of KAYE PATRICIA GARDNER
Third Plaintiff
DENE CLINTON KUENEN
Fourth Plaintiff
SUSAN MAREE NEWBOLD
Fifth Plaintiff
AND
ROBERT LESLIE HORTIN AND ADRIAN MARK BICKFORD as Executor of the Estate of LATE LESLIE MERVYN HORTIN
First Defendant
ROBERT LESLIE HORTIN
Second Defendant
Catchwords:
Practice and procedure - Costs - Appropriate costs order in probate action - Appropriate costs order where plaintiffs' claim concerns the proper construction of a will - Whether proceedings are adversarial
Legislation:
Rules of the Supreme Court 1971 (WA) O 66 r 1
Supreme Court Act 1935 (WA) s 37
Result:
Defendants' costs of the proceedings be paid out of the estate on a solicitor–own client basis
No order as to the plaintiffs' costs
Category: B
Representation:
Counsel:
| First Plaintiff | : | M L Bennett |
| Second Plaintiff | : | M L Bennett |
| Third Plaintiff | : | M L Bennett |
| Fourth Plaintiff | : | M L Bennett |
| Fifth Plaintiff | : | M L Bennett |
| First Defendant | : | E M Heenan SC & J R C Sippe |
| Second Defendant | : | E M Heenan SC & J R C Sippe |
Solicitors:
| First Plaintiff | : | Bennett |
| Second Plaintiff | : | Bennett |
| Third Plaintiff | : | Bennett |
| Fourth Plaintiff | : | Bennett |
| Fifth Plaintiff | : | Bennett |
| First Defendant | : | Seymour Legal |
| Second Defendant | : | Seymour Legal |
Case(s) referred to in decision(s):
In Re Buckton; Buckton v Buckton [1907] 2 Ch 406
Kuenen v Hortin and Bickford as executors of the estate of the late Leslie Mervyn Hortin [2024] WASC 152
HILL J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
On 3 May 2024, I delivered my reasons for decision on the originating summons issued by the plaintiffs, seeking orders concerning the proper construction of the will of the late Leslie Mervin Hortin.[1]
[1] Kuenen v Hortin and Bickford as executors of the estate of the late Leslie Mervyn Hortin [2024] WASC 152.
In my reasons, I expressed the preliminary view that the plaintiffs, as the unsuccessful party, should pay the defendants' costs of the originating summons to be taxed if not agreed.
At the hearing on 3 May 2024, the defendants sought orders in these terms. The plaintiff opposed this order and submitted that an order should be made for both parties' costs to be paid out of the estate.
Legal principles
Pursuant to s 37 of the Supreme Court Act 1935 (WA) (the Act), the court has a general discretion to award costs. This includes the power to determine who and out of what estate, fund or property costs should be paid.
This discretion must be exercised judicially and is subject to the rules of the court. Order 66 r 1 of the Rules of the Supreme Court 1971 (WA) (Rules) provides that, without limiting the general discretion conferred on the court by the Act, the court will generally order that the successful party to any action or matter will recover their costs. This is referred to as the general rule that 'costs follow the event'.
There has been some suggestion in the authorities that probate proceedings are, by their nature, different to other proceedings that fall within the court's jurisdiction, and that what constitutes 'success' in these proceedings must be determined by the reality of the circumstances of the case. If a proceeding concerns the due administration of an estate, the costs of the proceedings may be seen as costs which have been necessarily incurred in connection with the administration of that estate. Whether a party has acted reasonably in bringing and maintaining the application may be a relevant consideration in the question as to who should bear the costs.
In In Re Buckton,[2] Kekewich J, on an originating summons taken out by a beneficiary under a will against the trustee of the will seeking a declaration about the interest the plaintiff had under that will, made some general observations about how costs questions should be disposed of. Relevantly, at pages 414 to 415, his Honour referred to the three general types of summonses which come before the courts in these types of disputes.
[2] In Re Buckton; Buckton v Buckton [1907] 2 Ch 406.
The first is summonses commenced by the trustee or executor of the will seeking orders or declarations as to the proper construction of the will to ascertain the interests of the beneficiaries or determine an issue that has arisen in the administration of the trust. In these cases, his Honour expressed the view that the costs of all parties are necessarily incurred for the benefit of the estate and should be taxed as between solicitor and client and paid out of the estate. It is, of course, possible that trustees may come to the court without due cause.
The second class of case is the proceedings commenced by some or all of the beneficiaries on the question of construction which would have justified an application by the trustees. His Honour expressed the view that these applications are also necessary for the administration of the trust, and similar costs orders should be made, as in the first class.
The third class is applications made by a beneficiary which is adverse to the other beneficiaries which falls within the description of litigation or adverse litigation. Where the claim seeks to determine rights between litigants, his Honour expressed the view that the unsuccessful party should pay the costs of the proceedings. Whether the unsuccessful party ought to be ordered to pay the costs of the trustees, who are respondents, or not, is open to question, but with this possible exception the unsuccessful party bears the costs of all who they have brought before the court.
Disposition
In my view, these proceedings took the form of adversarial proceedings. There are two particular factors that indicate this. First, the approach that was taken in the proceedings and the fact that the gift under the will was distributed in October 2021, and second, the delay in not commencing these proceedings until June 2023. Although I would not characterise the arguments advanced by the plaintiffs to be frivolous or unarguable, I do not consider their case was strong.
For these reasons, it is my view the defendants were the successful party and are entitled to payment of their costs.
This raises the question as to who should pay those costs: the plaintiffs personally or the estate. The evidence before the court is that there is approximately $240,000 currently remaining in the estate and that the plaintiffs are five of the six residuary beneficiaries.
Given these matters, in this case I am persuaded that it would be appropriate for the defendants' costs to be paid by the estate. The effect of this order will be to visit the majority of the plaintiffs' costs on five of the six residuary beneficiaries.
However, I do not consider that any order should be made as to the costs of the plaintiffs in the circumstances of this case. The plaintiffs should bear their own costs of the proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JN
Associate to the Honourable Justice Hill
7 JUNE 2024
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