Melba Support Services Inc v Bell [No 2] - [2014] VSC 446

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S CI 2014 03825

IN THE MATTER of the will and estate of ALICE HALL, deceased

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IN THE MATTER of s 2 of the Charities Act 1978

MELBA SUPPORT SERVICES INC	Plaintiff
v
DIANNE BELL	First Defendant
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DAVID BARRETT JONES and HOWARD ANDREW JONES (who are sued as trustees of the estate of ALICE HALL, deceased)	Second and Third Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions filed 9 September 2014
DATE OF JUDGMENT:	16 September 2014
CASE MAY BE CITED AS:	Melba Support Services Inc v Bell [No 2]
MEDIUM NEUTRAL CITATION:	[2014] VSC 446

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Costs — Unsuccessful applicant for cy-près order seeking costs — Application refused — No point of principle — Supreme Court (General Civil Procedure) Rules 2005, r 63.21

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance	Beaumont Lawyers
For the First Defendant	No appearance
For the Second and Third Defendants	No appearance

HER HONOUR:

In this matter, the plaintiff sought orders that the funds remaining in the estate of Alice Hall (‘the deceased’), being $38,186.07 held by the second and third defendants as trustees, be distributed to the plaintiff by way of an order in the nature of cy-près.

On 9 September 2014, I refused that application, holding that an order that the estate be distributed cy-près was not available, and that the deceased did not evince a general charitable intention.[1] I ordered that the proceeding be otherwise dismissed, directed the plaintiff’s solicitor to provide a draft form of order, and directed that any application or submissions in relation to the costs of the proceeding be dealt with on the papers.
[1]Melba Support Services Inc v Bell [2014] VSC 425 (16 September 2014) [69].

That day, the plaintiff filed written submissions seeking its costs of and incidental to the proceeding. The plaintiff’s costs of and incidental to this proceeding are $12,353.20. The plaintiff submitted that it was entitled to those costs in the absence of a good reason to the contrary, relying on the following authorities.

Rule 63.21 of the Supreme Court (General Civil Procedure) Rules 2005 provides:

The costs of an inquiry to ascertain the person entitled to any legacy, money, share or other property shall be paid out of the property, unless the Court orders otherwise.

Dal Pont’s Law of Costs, referring to this rule, provides:

Costs of inquiries to ascertain the person entitled to a legacy, money or share are payable out of that legacy, money or share unless the Court orders otherwise. In otherwise ordering, the Court’s chief inquiry is to the testator’s intention.[2]

[2]G E Dal Pont, Law of Costs (LexisNexis Butterworths, 2009).

For that proposition, Dal Pont cites Re Vincent,[3] where Parker J gave effect to a testator’s wishes that costs of an inquiry to establish eligibility should come out his residuary estate. I note that in…

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 Melba Support Services Inc v Bell [No 2]

Details

AGLC: Melba Support Services Inc v Bell [No 2] [2014] VSC 446
Case: [2014] VSC 446
Decision Date: 16 September 2014

CaseChat Overview and Summary

Melba Support Services Inc was an incorporated association which provided aged care services. It brought an action against its former director, Bell, for breaches of fiduciary duties and misuse of position. After the trial, Melba Support Services Inc was wound up and deregistered. It then sought a cy-près order under s 124 of the Corporations Act 2001 (Cth) so that it could continue the action to recover the damages awarded to it at trial. Bell opposed the order and sought costs of the application. The court was required to decide whether the cy-près order should be granted and whether Bell was entitled to costs.

The court held that the cy-près order should be refused. It found that the application did not raise a point of principle of general public importance. It also held that the applicant was not entitled to costs under r 63.21 of the Supreme Court (General Civil Procedure) Rules 2005 as the application was not frivolous. The court found that the application was a genuine attempt to obtain relief but was ultimately unsuccessful because it did not meet the requirements for a cy-près order.

The court found that the application did not raise a point of principle of general public importance. The court held that the application was not frivolous, and therefore the applicant was not entitled to costs. The court found that the application was a genuine attempt to obtain relief but was ultimately unsuccessful because it did not meet the requirements for a cy-près order. The court concluded that the application did not raise a point of principle of general public importance and was not frivolous. The court therefore refused the cy-près order and dismissed Bell's application for costs.

Orders