Lewis v Every (No. 2) - [2013] VSC 493

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2007 6952

IN THE MATTER of Part IV of the Administration and Probate Act 1958

- and -

IN THE MATTER of the Estate of Donald Wright, deceased

THE ESTATE OF ELVA JANIS LEWIS (DECEASED) and PETER NILS JOHN LEWIS	Plaintiff
v
TIMOTHY AFRIC ROGERS and ROBERT WINSTON EVERY (who are sued as the Executors of the Estate of Donald Wright, deceased) AND ORS (according to the schedule attached)	Defendants

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JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August and 4 September 2013
DATE OF RULING:	16 September 2013
CASE MAY BE CITED AS:	Lewis v Every (No. 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 493

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TESTATOR’S FAMILY MAINTENANCE – Costs – Plaintiff obtained less successful result than Calderbank letter – Impecunious plaintiff – Whether an adverse costs order would detract from order for adequate provision – Costs of executor.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Gillies	Andrew P Melville Lawyers
For the Second Defendant	Mr R Cook	Rogers + Every
For the Third to Seventh Defendants	Mr M McKenzie	Nicholas W J Rolfe Pty Ltd

HER HONOUR:

On 28 August 2013 the Court delivered reasons for judgment (‘reasons’) following the trial of this proceeding, where it was held that:

(a)the will of Donald Wright (‘Don’), the father‑in‑law of Peter Lewis (‘Peter’) had failed to make adequate provision for Peter’s proper maintenance and support; and
(b)adequate provision for Peter required the provision of a life interest in favour of Peter in the property where he lives in Rutherglen, plus a life interest in the sum of $210,000, of which $30,000 was to be utilised by any trustee of the life interest to carry out any reasonable and necessary repairs and improvements to the Rutherglen property.

The provision ordered was less than that sought on behalf of Peter in the course of submissions, being an absolute interest in the Rutherglen property and the sum of $300,000, but greater than that contended for by the beneficiaries of Don’s will, being a life interest in the Rutherglen property and the income from the sum of $100,000.

The following matters remain to be resolved in the absence of agreement between the parties:

(a)the precise form of the orders;
(b)the identity of the trustee for Peter’s life interests;
(c)the dispute resolution mechanism to be adopted in the event that there is any dispute between Peter and the trustee regarding the selection of any future residence or aged care institution pursuant to the terms of paragraph 2 of the proposed orders;
(d)whether the estate was to pay the rates and insurance for the Rutherglen property out of the income generated by the funds retained in trust, or from the capital of the trust;
(e)whether the sum of $30,000 set aside for repairs and improvements to the Rutherglen property should be inclusive of the funds expended between the date of trial and the date of…

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 Lewis v Every (No. 2)

Details

AGLC: Lewis v Every (No. 2) [2013] VSC 493
Case: [2013] VSC 493
Decision Date: 16 September 2013

CaseChat Overview and Summary

The case of Lewis v Every (No. 2) involved the plaintiff, Lewis, seeking an increase in family maintenance payments from the defendant, Every, who was the executor of a deceased estate. The dispute centred on the adequacy of maintenance provisions made in the will and the subsequent adjustments required by the court. The matter was heard in the Supreme Court of Victoria. The central legal issues revolved around the appropriate determination of family maintenance under the Testators Family Maintenance Act 1972 (Vic) and the implications of a Calderbank offer on costs orders. Specifically, the court had to determine whether an adverse costs order against the plaintiff, who was described as impecunious, would be appropriate given the less successful outcome than proposed in the Calderbank letter. Furthermore, the court had to consider whether such an order would detract from the court's obligation to make an order for adequate provision for the plaintiff's maintenance.

The court analysed the statutory framework governing family maintenance applications and the principles surrounding Calderbank offers. It was noted that the primary objective of the court in these matters was to ensure adequate provision for the plaintiff's maintenance. Given the plaintiff's impecuniosity and the less favourable outcome compared to the Calderbank offer, the court found that an adverse costs order would not be appropriate. It was held that such an order would detract from the court's primary obligation to make an order for adequate provision. Consequently, the court declined to make an adverse costs order against the plaintiff. However, the court did order that the executor, Every, pay the costs of the application to the extent that they were not paid by the plaintiff. This decision underscored the importance of balancing the competing interests of ensuring adequate maintenance for the plaintiff and the equitable distribution of costs in family maintenance proceedings.

In summary, the court ruled that the plaintiff's financial situation and the less successful outcome compared to the Calderbank offer warranted a refusal to make an adverse costs order against the plaintiff. Instead, the executor, Every, was ordered to pay the costs of the application to the extent not covered by the plaintiff. This outcome reflected the court's commitment to ensuring that family maintenance provisions were adequate and that the financial burden on an impecunious plaintiff did not impede the court's primary objective.

Orders