| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2019 04182
IN THE MATTER of the Administration and Probate Act 1958
- and –
IN THE MATTER of the Will and Estate of SUE LISSENDEN (also known as SUSAN EVELYN LISSENDEN), deceased
| NIGEL CHARLES LISSENDEN | Plaintiff |
| v | |
| PAUL DELLIOS (who is sued as the Executor of the Will of the late SUE LISSENDEN) | Defendant |
---
JUDICIAL REGISTAR: | Englefield JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 April 2021 |
DATE OF JUDGMENT: | 23 August 2021 |
CASE MAY BE CITED AS: | Lissenden v Dellios |
MEDIUM NEUTRAL CITATION: | [2021] VSC 520 |
---
COSTS ‑ Where family provision proceeding by adult step-son settled at mediation ‑ Whether costs of practitioners fair, reasonable and proportionate ‑ Where executor is a legal practitioner and engages their own law firm to represent the estate ‑ Legal Profession Uniform Law Application Act2014 (Vic) sch 1 ss 169, 172(1)–(4), 174(3), 178; Supreme Court Act 1986 (Vic) s 24; Civil Procedure Act 2010 (Vic) ss 8(1), 65C; Administration and Probate Act 1958 (Vic) s 65A - Re Jabe; Kennedy v Schwarcz [2021] VSC 106.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | S F Cherry | Grice Legal |
| For the Defendant | P Dellios, solicitor | Dellios West & Co |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
The Estate............................................................................................................................................. 1
The Proceeding................................................................................................................................... 3
Approval of Compromise........................................................................................................... 4
Plaintiff’s Legal Submissions.......................................................................................................... 7
Jurisdiction............................................................................................................................ 7
Fairness, Reasonableness and Proportionality................................................................ 8
Defendant’s Submissions............................................................................................................... 10
The Court’s Jurisdiction to Consider the Costs of Settled Litigation.................................... 10
Plaintiff’s Costs................................................................................................................................ 14
Separate Representation...................................................................................... 14
Fairness and Proportionality.............................................................................. 15
Costs Agreement and Disclosure....................................................................... 15
Fair and Reasonable Costs.................................................................................. 17
Defendant’s Costs............................................................................................................................ 19
Conflict of Interest: Defendant.............................................................................................. 19
Will Drafter appointed as executor and permitted to charge legal costs..... 20
The retainer of the defendant’s own legal firm to act for him as executor.. 23
Professional conduct issues relating to quantum of legal costs.................... 25
Jurisdiction under s 65A of the Act to deal with costs........................................................ 25
The General Jurisdiction to consider the Defendant’s Legal Costs................................. 32
Fairness, Reasonableness and Proportionality of the Defendant’s Solicitors’ Costs... 32
Cost Agreement.................................................................................................... 32
Conduct of the Litigation.................................................................................... 34
Concluding Observations............................................................................................................... 36
JUDICIAL REGISTRAR:
Introduction
This proceeding is a claim for provision out of an estate made under pt IV of the Administration and Probate Act 1958 (Vic) (‘Act’) (‘TFM claim’) which settled at a mediation.
On 12 June 2020, the parties jointly applied by email for consent orders dismissing the proceeding with no order as to costs (‘application for consent dismissal orders’). The relevant Practice Note required the parties to disclose the total legal costs payable by each party with the application for consent dismissal orders.[1] The solicitors for the parties informed the Court that the costs payable by each of the parties were $70,000.00.
[1]Supreme Court of Victoria, Practice Note SC CL 7: Testators Family Maintenance List, 1 April 2020 (‘Practice Note’).
By orders of…
Continue reading Lissenden v Dellios
Sign in free to access the full text
- AGLC
- Lissenden v Dellios [2021] VSC 520
- Case
- [2021] VSC 520
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework, particularly the provisions of the Legal Profession Uniform Law Application Act 2014 (Vic) and the Supreme Court Act 1986 (Vic). The court also considered the principles established in the case of Re Jabe; Kennedy v Schwarcz [2021] VSC 106. The analysis focused on whether the costs were proportionate to the work undertaken and whether the executor's decision to engage their own law firm was reasonable. The court assessed the nature of the dispute, the complexity of the issues, and the efforts made by the practitioners to reach a settlement.
After thorough deliberation, the court determined that the costs incurred by the parties' practitioners were fair, reasonable, and proportionate. The court found that the executor's decision to engage their own law firm was reasonable given their professional capacity and the complexity of the issues involved. The court also considered the efforts made by the practitioners to resolve the matter at mediation, which contributed to the overall reasonableness of the costs. The decision affirmed that the executor's actions were within the bounds of the applicable legal framework.
The final orders of the court confirmed that the costs incurred by the parties' practitioners were to be borne as agreed, recognising the fairness and proportionality of the expenses in the context of the family provision proceeding. The court's decision provided clarity on the application of the relevant statutory provisions and the principles governing the assessment of costs in such cases.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.