Macgregor v Mervyn Stanley Macgregor as Executor of the estate of Janet Edna Macgregor
[2003] WASC 169 (S)
•20 MAY 2004
MACGREGOR & ANOR -v- MERVYN STANLEY MACGREGOR as Executor of the estate of JANET EDNA MACGREGOR & ANOR [2003] WASC 169 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 169 (S) | |
| 20/05/2004 | |||
| Case No: | CIV:2528/2000 | 29 JANUARY 2003, 22 AUGUST 2003, 30 MARCH 2004, 29 APRIL 2004 | |
| Coram: | TEMPLEMAN J | 28/08/03 | |
| 29/04/04 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Costs awarded according to category of hearing | ||
| A | |||
| PDF Version |
| Parties: | JEANETTE DAWN MACGREGOR DALYS WENDY GILLETT MERVYN STANLEY MACGREGOR as Executor of the estate of JANET EDNA MACGREGOR MERVYN STANLEY MACGREGOR |
Catchwords: | Costs Family provision after death Conduct in mediation Order 24A offer of compromise |
Legislation: | Nil |
Case References: | Ross v Suncorp Metway Insurance Ltd [2002] QCA 93 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 29 APRIL 2004 PUBLISHED : 20 MAY 2004 FILE NO/S : CIV 2528 of 2000 BETWEEN : JEANETTE DAWN MACGREGOR
- DALYS WENDY GILLETT
Plaintiffs
AND
MERVYN STANLEY MACGREGOR as Executor of the estate of JANET EDNA MACGREGOR
First Defendant
MERVYN STANLEY MACGREGOR
Second Defendant
(Page 2)
Catchwords:
Costs - Family provision after death - Conduct in mediation - Order 24A offer of compromise
Legislation:
Nil
Result:
Costs awarded according to category of hearing
Category: A
Representation:
Counsel:
Plaintiffs : Mr T Darbyshire
First Defendant : In person
Second Defendant : In person
Solicitors:
Plaintiffs : Kott Gunning
First Defendant : In person
Second Defendant : In person
Case(s) referred to in judgment(s):
Ross v Suncorp Metway Insurance Ltd [2002] QCA 93
Case(s) also cited:
Nil
(Page 3)
1 TEMPLEMAN J: It will be convenient to regard the costs of this litigation as falling into the following categories: first, the interlocutory or preliminary matters conducted before a Master or Registrar, that is, matters heard before the main hearing; secondly, the costs of the mediation; thirdly, the costs of the hearing on 29 January 2003; fourthly, the costs of the hearing on 22 August 2003. Finally there are the costs of subsequent appearances relating to the formulation of orders and the sale of the Congdon Street property.
2 By way of background, this is a case in which litigation was, in my view, virtually inevitable. I say that, given the relationship between the parties and their mother, the testatrix, and having regard to the terms of the will. I note also the fact that the plaintiffs have always acknowledged that the defendant had a strong case. Indeed, Mr Darbyshire at page 246 of the transcript accepted - very properly, in my view - that it was not unreasonable for the claim to be defended. He takes issue with the way in which the defence was conducted.
3 It was those considerations which prompted me to say in par 202 of my reasons that I then thought that the costs of the litigation should be borne by the estate: see [2003] WASC 169.
4 In relation to the interlocutory or preliminary matters, it is my view that the costs should be borne by the estate, except where specific orders were made. I have in mind an order made against the defendant that he pay the costs himself when he failed to comply with an order of the court to allow a valuer to enter the property. Thus, where specific orders were made, they will stand. Where no specific orders were made, costs will fall on the estate.
5 I say that for the avoidance of doubt because I notice that in some instances a Registrar made orders that costs would be in the cause. However, the Registrar did say there was always the possibility that costs would come out of the estate. I think, therefore that the position was left open. I say that, bearing in mind also, that the O 24A offers, to which I will refer in a moment, were made during the course of interlocutory proceedings.
6 I turn to the costs of the mediation. The mediation was ordered, it seems, at the suggestion of a Registrar, although both parties agreed to it. But in my view, Mr Macgregor, the defendant, did not approach the mediation with any intention of achieving a reasonable result. I have referred previously to the mediation Registrar's report which is
(Page 4)
- summarised at p 241 of the transcript. In the report - which I read with the Registrar's consent – the Registrar said:
"This was a matter capable of resolution. The defendant does not want to find a way of solving this. The costs alone will cause the house to be sold. I cannot continue to mediate with people who have no interest in reasoning their way through the process. If the plaintiffs make an application for the costs of the failed mediation process, then they should have them, including any costs incurred by the plaintiff who had to travel from the country."
8 I therefore order that the costs of the mediation, including the plaintiffs' reasonable travelling expenses, are to be paid by the defendant. The costs are to be taxed if not agreed.
9 I turn to the hearing on 29 January 2003. This was the substantive hearing of the application. The plaintiffs say that the costs of the hearing should be paid by the defendant himself for four reasons. The first was the defendant's attitude to the mediation. I do not take that into account in relation to costs of 29 January hearing because I have dealt with the costs of mediation separately.
10 The second matter was the defendant's failure to comply with Master Sanderson's order about inspection of the property by the valuer. Again, I do not take that into account in relation to this matter because a costs order was made against the defendant.
11 The third matter is said to be the way the defendant conducted his case. As to that, I note that on 29 January 2003 the defendant did very little. He represented himself. He did not cross-examine witnesses to any extent, if at all. His conduct on that occasion therefore did not add to the costs. Indeed, it seems to me that probably there was a saving of costs.
12 The affidavit evidence filed by or on behalf of the defendant certainly raised a number of irrelevant issues. Regrettably, that is often so in cases of this kind. I see no reason to penalise the defendant for that. He was answering the plaintiffs' evidence which also contained irrelevant material.
(Page 5)
13 I turn to the fourth matter: the O 24A offers. Those offers were filed on 18 February 2002. They were offers by the plaintiffs to accept $70,000 and $90,000 respectively in settlement of their claims.
14 I have ordered that the plaintiffs will each receive one-sixth of the estate. This is likely to be greater than $100,000 and it is in those circumstances that reliance is placed on the O 24A offers. Order 24A r 10(4) is relevant. It is in these terms:
"Where an offer is made by a plaintiff and not accepted by the defendant and the plaintiff obtains judgment on the claim to which the offer relates no less favourable to him than the terms of the offer, then unless the court otherwise orders the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim from the date on which the offer was made, taxed on an indemnity basis, in addition to his costs incurred before that date, taxed on a party and party basis."
15 Although the offers were made on 18 February 2002, the house was not valued until July 2002 when Mr Rae valued it at $620,000. His estimate as at January 2003, the date of the trial, was of the order of $675,000.
16 The commentary in Seaman on O 24A r 10 includes the following:
" … the ordinary order for indemnity costs may be inappropriate where the plaintiff's offer was made with the service of a statement of claim when the only basis upon which the defendant could assess the claim before the time for accepting the offer expired was upon the pleaded allegations and the nature of the case was not clearly made out until all the medical reports had been obtained: Ross v Suncorp Metway Insurance Ltd BC 200201060; [2002] QCA 93."
17 In my view, the present case is analogous to that and gives rise to the application of the principle which Ross v Suncorp Metway Insurance Ltd [2002] QCA 93 discloses. In other words, because the O 24A offers were made before the value of the house had been determined, it was not unreasonable, in my view, for the defendant not to accept them.
18 Furthermore, if the value of the house had only been $620,000 at the hearing, I cannot say that the plaintiffs would have obtained more than the $160,000 which together they had offered to accept. In those circumstances, it is by no means clear that the plaintiffs would have
(Page 6)
- obtained a judgment which was no less favourable than the terms of the offer they had made.
19 The courts have declined to lay down any catalogue of circumstances in which they will depart from the normal consequences of O 24A, but in my view this is one of the circumstances in which the order should not apply. I therefore decline to make an order for indemnity costs or indeed an order that Mr Macgregor, the defendant, should pay the costs of the hearing of 29 January 2003 himself. I will order in relation to those costs that they be borne by the estate. The costs are to be taxed.
20 In making these orders I have had regard to the fact that because the estate will be divided two-thirds to the defendant and one-sixth each to the plaintiffs, the defendant will bear the greater burden of the costs.
21 I turn to the costs of the hearing on 22 August 2003. That was a hearing which resulted from the defendant making further submissions and raising new issues. I refer in particular to a substantial document filed by the defendant on 14 April 2003 which was entitled Reply to Plaintiffs' Supplementary Submissions. However, this document went further than simply replying to submissions: it raised a number of questions of fact.
22 I decided to give the defendant an opportunity to be heard on those matters because otherwise he may well have had a justifiable sense that his case had not been presented as fully as he would have wished to present it. However, as appears from my principal reasons, in relation to those matters I consider that the defendant acted unreasonably in raising the new allegations. Indeed he was entirely unsuccessful in relation to the matters he raised by that document. I therefore am of the view that the defendant should bear the costs of that hearing, to be taxed if not agreed.
23 Finally I turn to the costs of the subsequent proceedings: that is, the costs of attendances before me to work out the form of the order and to determine the way in which the property should be sold. I appreciate that these matters are not concluded. They are ongoing. However, it seems to me that the costs of these appearances before me should also be borne by the estate.
24 I say that because it seems to me that there is no right or wrong answer to the question of how the property should be sold. It is a matter in which the parties have legitimate differences of opinion. If they are not able to agree and I have to resolve them, that does not in my view reflect badly on any of the parties. It is simply one of the incidents of the administration of the estate. It is therefore appropriate that the costs be
(Page 7)
- borne by the estate. Of course, if I was to come to the view that one of the parties was acting unreasonably in the subsequent course of the administration, I would make appropriate costs orders.
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