Markin v Animals Australia Federation (No 2) - [2020] VSC 270

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S ECI 2018 02474

IN THE MATTER of the Will and Estate of VIVIENNE ROSARIA ROSS, deceased

-and-

IN THE MATTER of an application pursuant to Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for the determination of a question arising in the administration of the estate

BETWEEN

HOPI JULIAN MARKIN (as Executor of the Will and Estate of VIVIENNE ROSARIA ROSS, deceased)	Plaintiff
v
ANIMALS AUSTRALIA FEDERATION ACN 617 080 387	First Defendant
- and -
SYDA FOUNDATION	Second Defendant

---

JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	15 May 2020
CASE MAY BE CITED AS:	Markin v Animals Australia Federation & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 270

---

COSTS – Trustees – Indemnification – Where trustee sought judicial advice – Whether trustee’s costs should be paid out of estate on an indemnity basis to be assessed in default of agreement – Where trustee has not provided information to defendant residuary beneficiaries regarding the quantum or breakdown of costs – Trustee entitled to indemnification for properly incurred costs – Supreme Court Act 1986, s 24 – Trustee Act 1958, s 36 – Supreme Court (General Civil Procedure) Rules 2015, r 63.26 – Wales v Wales [2015] VSCA 345, applied.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Flynn QC	Nicholson Ryan Lawyers
For the Defendants	Mr S Pitt	Lawson Hughes Peter Walsh

HIS HONOUR:

The plaintiff commenced this proceeding pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 seeking advice in relation to the administration of the estate of Vivienne Ross. The plaintiff is the executor of the estate as well as a beneficiary, receiving the deceased’s shares in any companies. The plaintiff, in his capacity as executor, sought advice from the Court pertaining to a dividend that had been declared and paid after the death of the deceased. The defendants, residuary beneficiaries of the estate, unsuccessfully contended that the dividend belonged to the residue of the estate and was payable to them. The Court will make declarations in the form proposed by the parties.

The remaining issue to be determined concerns the costs of the proceeding. The plaintiff seeks an order in the following terms:

The Plaintiff and the Defendants be indemnified in respect of their costs of and incidental to the application out of the estate of Vivienne Ross.

The defendants seek that the following orders be made:

1.The Plaintiff’s costs of and incidental to the proceeding to be paid or retained out of the Estate of Vivienne Rosaria Ross and to be assessed, in default of agreement, on an indemnity basis.
2.The Defendants’ costs of and incidental to the proceeding be paid out of the Estate of Vivienne Rosaria Ross to be assessed, in default of agreement, on an indemnity basis.

For the reasons which…

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.

Keep reading for free

Create a free CaseChat account to read Markin v Animals Australia Federation (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] VSC 270
Decision Date: 15 May 2020

CaseChat Overview and Summary

The case before the court was Markin v Animals Australia Federation (No 2), which involved a dispute over the indemnification of costs for a trustee in the context of estate administration. The applicant, Markin, sought judicial advice regarding the trustee's costs, which were to be paid out of the estate on an indemnity basis, to be assessed in default of agreement. The legal issues before the court were whether the trustee was entitled to be indemnified for the costs incurred and whether the applicant had provided sufficient information to the defendant residuary beneficiaries regarding the quantum or breakdown of those costs.

The court found that the trustee was entitled to indemnification for properly incurred costs. The court noted that the trustee had not provided information to the beneficiaries regarding the quantum or breakdown of the costs. However, the court emphasised that the trustee was not required to provide such information before seeking judicial advice. Instead, the court held that the trustee was entitled to indemnification for properly incurred costs, in accordance with the Supreme Court Act 1986, s 24, the Trustee Act 1958, s 36, and the Supreme Court (General Civil Procedure) Rules 2015, r 63.26. The court applied the decision in Wales v Wales [2015] VSCA 345, which held that a trustee is entitled to indemnification for properly incurred costs, even if the beneficiaries have not been provided with detailed information regarding the costs.

The court further held that the applicant's failure to provide information to the beneficiaries did not affect the trustee's entitlement to indemnification. The court noted that the trustee's duty was to administer the estate in the best interests of the beneficiaries, and that this included seeking judicial advice regarding the indemnification of costs. The court held that the trustee was entitled to indemnification for properly incurred costs, and that the beneficiaries were not prejudiced by the lack of information regarding the quantum or breakdown of those costs.

In conclusion, the court held that the trustee was entitled to indemnification for properly incurred costs, and that the applicant's failure to provide information to the beneficiaries did not affect this entitlement. The court granted the trustee's application for judicial advice and ordered that the trustee be indemnified for properly incurred costs, in accordance with the relevant legislation and court rules.

Orders