Lawrence v Lawrence

[2004] WASC 90 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	LAWRENCE -v- LAWRENCE & ORS [2004] WASC 90 (S)

CORAM	: MASTER SANDERSON
HEARD	:  5 & 6, 13 MAY 2004
DELIVERED	: 13 MAY 2004
SUPPLEMENTARY
DECISION	: 26 MAY 2004
FILE NO/S	:  CIV 1117 of 2000
MATTER	:  Inheritance (Family & Dependants Provision) Act 1972
BETWEEN	: ELAINE CYNTHIA LAWRENCE

Plaintiff

AND

ELAINE CYNTHIA LAWRENCE
KAREN ELAINE DUCAT as Executrices of the Will
of KEITH LIONEL LAWRENCE

First Defendants

KAREN ELAINE DUCAT

Second Defendant

LEWIS WILLIAM LAWRENCE

Third Defendant

ELLEN MAY HATHAWAY

Fourth Defendant

DAPHNE ANNE SARGENT
Fifth Defendant

[2004] WASC 90 (S)

LIONEL GEORGE LAWRENCE

Sixth Defendant

Catchwords:

Practice and procedure - Form of orders and costs

Legislation:

Nil

Result:

Orders formulated

Category: B

Representation:

Counsel:

Plaintiff	:	Ms H E Prince
First Defendants	:	Mr K F Sleight
Second Defendant	:	Mr J C Curthoys
Third Defendant	:	Mr J C Curthoys
Fourth Defendant	:	Mr J C Curthoys
Fifth Defendant	:	Mr J C Curthoys
Sixth Defendant	:	Mr J C Curthoys

Solicitors:

Plaintiff	:	Patrick Gethin & Co
First Defendants	:	Mayberry Hammond
Second Defendant	:	Paterson & Dowding
Third Defendant	:	Dawson Davies
Fourth Defendant	:	Dawson Davies
Fifth Defendant	:	Dawson Davies
Sixth Defendant	:	Dawson Davies

[2004] WASC 90 (S)

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

[2004] WASC 90 (S)

MASTER SANDERSON

1. MASTER SANDERSON: After publishing reasons in this matter, the parties made submissions with respect to costs and the form of the order. These supplementary reasons deal with both these issues.

2              In mid-2002 the plaintiff's solicitors made an offer to the defendants

pursuant to the provisions of O 24A. The offer was complex and its terms need not be repeated in these reasons. What is significant is that the plaintiff offered to settle her claim for an amount of $325,000. I determined that she was entitled to an amount of $330,000. On that basis the plaintiff submitted that she should be entitled to her costs of the proceedings from the date the offer was made.

3              The complicating fact in this case is the dispute over various chattels

which were said to be part of the estate and the lady's fob watch. Just prior to the hearing, agreement was reached in relation to all of the chattels, but not the fob watch. Some of the chattels went to the plaintiff, some were retained by the estate. What is clear is that the eventual settlement does not mirror precisely the offer made pursuant to O 24A. In those circumstances I am not satisfied that it would be appropriate under the provisions of the order to award costs to the plaintiff. The general rule in cases brought under the Act is that the costs of all parties should be paid out of the estate. That, I think, is the proper order, at least with respect to the costs of the plaintiff and the second to sixth defendants.

4              Counsel for the first defendants, who was excused from and took no

part in the hearing of the application, appeared when judgment was handed down and made submissions with respect to the costs of the first defendants. It is clear that there is a degree of antipathy between the plaintiff and the second defendant. That has made the position of the solicitors for the first defendants somewhat difficult. Counsel for the first defendants sought an order that the costs of the first defendants be paid from the estate on an indemnity basis. He submitted that if such an order was made, any potential dispute between the two first defendants would not affect the payment of their costs. Unusual as the order is, I think in this case it is appropriate. It may have the effect of avoiding arguments between the executrices. Accordingly I will make that order.

5              After some hesitation the parties were able to agree a schedule of

items to be retained by the plaintiff and to be retained by the estate. So as there will be a permanent record of the agreement reached with respect to these items, the schedule will be included with the order. Pursuant to the terms of the orders a copy of the order will be included in the probate,

[2004] WASC 90 (S)

MASTER SANDERSON

with the effect that there will be no room for disagreement as to who is
entitled to each of the various chattels.

1. Against that background the orders will be as follows:

(1)

The Will of the deceased be varied by:

(a)	deleting the reference to Elaine Cynthia Lawrence in cl 2(a) of the Will;
(b)	deleting cl 2(f) of the Will; and
(c)	deleting par 2(I)(i) of the Will.

(2)

Within 60 days of this order the sum of $330,000 is to be paid to the plaintiff from the funds held by the estate. Provided that sum is paid within 60 days, it is not to bear interest. If it is not paid within 60 days, the sum is to bear interest calculated from the date of this order until the date of payment at the rate payable under s 32 of the Supreme Court Act.

(3)

Various chattels of the deceased are to be divided between the parties in accordance with the schedule annexed to this order.

(4)

A certified copy of this order be included in the probate and the first defendants are to produce the grant to the Court for that purpose.

(5)

The costs of the plaintiff and the second to sixth defendants be taxed and paid by the first defendants out of the estate.

(6)

The costs of the first defendants be taxed and paid out of the estate on a full indemnity basis, save insofar as those costs have been unreasonably incurred.

7              The extracted order is, of course, to be in accord with Form 37 of the

Common Forms the schedule provided by the parties is to be included as a schedule to the order.