Milne v Kendall as Executor of the Estate of Constance Mary Ursla Collins
[2010] WASC 338 (S)
•26 NOVEMBER 2010
MILNE -v- KENDALL as Executor of the Estate of Constance Mary Ursla Collins [2010] WASC 338 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASC 338 (S) | |
| Case No: | CIV:2369/2008 | 6, 9 & 10 AUGUST 2010 | |
| Coram: | JENKINS J | 26/11/10 | |
| 13/01/12 | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Special costs order made | ||
| B | |||
| PDF Version |
| Parties: | JULIE ANN MILNE CAROLINE MARIE MILNE KENNETH JOHN MILNE JOHN STEWART KENDALL as Executor of the Estate of Constance Mary Ursla Collins HELEN PATRICIA KENDALL ELIZABETH MARY JENKINSON TIMOTHY EDWARD COLLINS |
Catchwords: | Costs Special costs orders Whether amount of costs allowable in Item 11(a) is inadequate Whether inadequacy is because of the complexity of the matter Multiple plaintiffs Expert evidence |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1), s 7(1)(d) Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 Legal Profession Act 2008 (WA), s 280(2) |
Case References: | Butcher v Craig [2010] WASCA 92(S) Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty ltd (in liq) [2007] WASC 254(S) Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237(S) Milne v Kendall [2010] WASC 338 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 13 JANUARY 2012 FILE NO/S : CIV 2369 of 2008 BETWEEN : JULIE ANN MILNE
- First Plaintiff
CAROLINE MARIE MILNE
Second Plaintiff
KENNETH JOHN MILNE
Third Plaintiff
AND
JOHN STEWART KENDALL as Executor of the Estate of Constance Mary Ursla Collins
First Defendant
HELEN PATRICIA KENDALL
Second Defendant
ELIZABETH MARY JENKINSON
Third Defendant
TIMOTHY EDWARD COLLINS
Fourth Defendant
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Catchwords:
Costs - Special costs orders - Whether amount of costs allowable in Item 11(a) is inadequate - Whether inadequacy is because of the complexity of the matter - Multiple plaintiffs - Expert evidence
Legislation:
Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1), s 7(1)(d)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010
Legal Profession Act 2008 (WA), s 280(2)
Result:
Special costs order made
Category: B
Representation:
Counsel:
First Plaintiff : Mr G T Stubbs
Second Plaintiff : Mr G T Stubbs
Third Plaintiff : Mr G T Stubbs
First Defendant : Mr J C Curthoys
Second Defendant : Mr J C Curthoys
Third Defendant : Mr J C Curthoys
Fourth Defendant : Mr J C Curthoys
Solicitors:
First Plaintiff : Dwyer Durack
Second Plaintiff : Dwyer Durack
Third Plaintiff : Dwyer Durack
First Defendant : Stables Scott
Second Defendant : Stables Scott
- Third Defendant : Stables Scott
Fourth Defendant : Stables Scott
Case(s) referred to in judgment(s):
Butcher v Craig [2010] WASCA 92(S)
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty ltd (in liq) [2007] WASC 254(S)
Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237(S)
Milne v Kendall [2010] WASC 338
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1 JENKINS J: In Milne v Kendall [2010] WASC 338 I determined that inadequate provision had been made by Constance (Connie) Milne in her will for the plaintiffs, who are three of her grandchildren. Pursuant to the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act) s 6(1), s 7(1)(d), I ordered that appropriate and adequate provision for each of Julie and Caroline, the first and second plaintiffs respectively was $50,000 and appropriate and adequate provision for Kenneth, the third plaintiff, was $25,000. These sums were in substitution for, and not in addition to, the $10,000 left to each of them in the will.
2 The parties have agreed substantially the costs orders to be made. First, they have agreed that the first defendant, in his capacity as executor, should have his costs paid out of the estate on a solicitor/client basis. Secondly, they agree that all other parties' costs should be paid by the executor from the residue of the estate to be taxed, if not agreed.
3 However, the plaintiffs have applied to lift the limit on Item 11(a) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 to $95,040, which is three times the applicable limit. The application is supported by the affidavit of Daniel Ryan Gill, a lawyer employed by the Plaintiffs’ solicitors. The defendants' position is that Item 11(a) is adequate. The plaintiffs also seek an order in respect of expert evidence.
The law
4 The Legal Profession Act 2008 (WA) s 280(2) states that if a court is of the opinion that the amount of costs allowable in respect of a matter is inadequate because of 'the unusual difficulty, complexity or importance of the matter', the court may, relevantly, fix higher limits of costs than those fixed in the determination.
5 'Unusual' qualifies only the 'difficulty' of the matter and not its complexity or importance: Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty ltd (in liq) [2007] WASC 254(S) [17] (Martin CJ); Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237(S) [33] (Simmonds J). Both Hearltink and Hodgkinson were decided in relation to the identical terms of the predecessor legislation to s 280(2) and, thus, they remain relevant to the construction of s 280(2).
6 The threshold requirement before a discretion can be exercised as to whether a special costs order should be made is that the court must be of the opinion that a costs determination is inadequate. That requirement will be met if the applicant shows that there is a fairly arguable case that
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- the bill to be presented to the taxing officer may tax at an amount which is greater than the limit imposed by the costs determination. If that requirement is met, the second question is whether the inadequacy arises because of the complexity of the matter: Heartlink [16]. The plaintiffs do not rely on the unusual difficulty or importance of the matter.
Is the limit in Item 11 inadequate?
7 Item 11(a) of the 2010 costs determination provides for a limit of $31,680 for a matter commenced by originating motion being for two days preparation, a one day hearing and getting up of 50 hours. The allowance for subsequent days is $3,410.00. The hearing took about one and a half days, but it was spread over three days.
8 Mr Gill deposes that the plaintiffs have paid legal costs of $11,087 prior to the filing of the originating summons and $79,272 since the filing of the originating summons. They have also paid counsel's fees of $18,219. These amounts are inclusive of GST. Mr Gill has attached to his affidavit each memorandum of fees sent to the plaintiffs. Each of the invoices sent to the plaintiffs say that detailed information supporting the invoice is attached to it, but that information is not attached to the affidavit. However, in his affidavit Mr Gill details some of the work done during the course of the proceedings.
9 The defendants submit that there is insufficient evidence before me to properly evaluate whether the limit in item 11(a) is inadequate. Despite the lack of a draft bill of costs, I am satisfied, on the basis of Mr Gill's affidavit and my knowledge of the matter as trial judge, that the limit in item 11(a) is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit imposed by the costs determination.
Is the inadequacy due to the complexity of the matter?
10 The plaintiffs rely on three matters to show that the inadequacy of the limit in Item 11(a) is due to the complexity of the matter. In my view only one of these matters has been made out. It is that the matter was complex due to there being three plaintiffs, each of whom had a separate case to put to substantiate their claim on their grandmother's estate.
11 The first matter relied on is that the nature of a claim under the Act is more complicated than most processes begun by originating summons. In support of this point, the plaintiffs point to the fact that the hearing took
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- one and a half days. This submission must be balanced against the fact that Item 11 allows extra costs for matters that take more than a day.
12 Claims under the Act require a judge to exercise a discretionary judgment in relation to what are often disputed facts. But the disputes are usually about discrete issues relating to the relationship between the claimant and the deceased or the claimant's financial position and earning capacity. The legal principles related to these claims are well settled. A conclusion that the inadequacy of the limit in Item 11(a) is due to the complexity of the matter is not justified simply because this is a claim under the Act.
13 The second matter relied on by the plaintiffs is that expert evidence was required to be obtained and adduced because of the failure of the defendants to admit the claims made by the plaintiffs about their medical conditions. It is also said that expert evidence was required because of the failure of the third defendant to put forward sufficient evidence to allow proper analysis of her financial position.
14 In respect of the plaintiffs' medical condition, I am not satisfied that this made the matter complex. Their medical conditions and the evidence relating to them were quite straightforward. There was also a need to obtain expert evidence about prospects of rehabilitation and future employment capacity, having regard to those medical conditions. Again, these factual issues did not make the matter complex.
15 As to the third defendant's financial position, in my reasons I said that the financial information provided by the third defendant fell short of the information required to prove her claims about her level of her income, the profitability and value of her businesses and the loss she makes from the investment property. However, I pointed out that the onus of proof lay on the plaintiffs to prove their claim, so that this finding was of limited assistance to them.
16 I accept that due to the limited information provided by the third defendant and the complexity of her financial situation, the plaintiffs needed to engage an expert to examine her financial position. However, the work involved was that of the expert, primarily, and I do not accept that it means that the inadequacy of Item 11 is due to this issue.
17 Lastly, I turn to the matter which I accept does establish that the inadequacy of Item 11(a) is due to the complexity of the matter. That is, there were three plaintiffs, each of whom had a separate case to present to justify their claim against the estate.
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18 The plaintiffs have addressed this application on the basis that they are only entitled to present one combined bill of costs which, if taxed, will be subject to the usual limit under Item 11(a). However, the reality is that the matter involved three claimants with different factual bases for their claims. Whilst there was considerable overlap in their claims in that their allegations concerning the defendants was the same, each of the claimants was required to provide separate instructions, prepare separate affidavits and give evidence relating to their own relationship with their grandmother, their medical conditions and their financial position. The fact that there were three plaintiffs distinguishes this matter from Butcher v Craig [2010] WASCA 92(S), which is relied on by the defendants. I am satisfied that the inadequacy of the limit in item 11(a) is due to the complexity of three separate claims being included in the one matter.
19 This finding justifies me in fixing a higher limit than that contained in Item 11(a). However, I am not prepared to triple that limit as it seems to me to do so would accept that there is no overlap between the claims by the plaintiffs. In my opinion there is substantial overlap. I also bear in my mind that the principle of proportionality applies to costs orders under the Act: Consolidated Practice Direction 9.2.2. Thus, I am only prepared to double the limit provided for by Item 11 to $63,360.00.
Expert evidence
20 Finally, the plaintiffs seek an order that if the matter proceeds to taxation, the taxing officer makes allowance for the plaintiffs' four expert witnesses.
21 It was reasonable and necessary for the plaintiffs to address, through expert testimony, their medical conditions, their earning capacity and the third defendant’s financial position. Thus, it is appropriate that I make the order sought.
Orders
1. The will of the late CONSTANCE MARY URSLA COLLINS dated 8 June 2007 be amended so that cl 2 reads:
I GIVE (free of all duties):
(a) the sum of $50,000.00 to my granddaughter JULIE ANN MILNE who survives me; and
- (b) the sum of $50,000.00 to my granddaughter CAROLINE MARIE MILNE who survives me; and
(c) the sum of $25,000.00 to my grandson KENNETH JOHN MILNE who survives me.
- 2. A certified copy of this order be included in the probate and that the First Defendant do produce the grant to the Court for that purpose.
3. The First Defendant's costs be paid from the estate on a solicitor/client basis.
4. All other parties' costs:
(a) be paid by the executor from the residue of the estate to be taxed if not agreed; and
(b) if taxed:
(i) to be taxed in accordance with Item 11 of the Legal Practitioners (Supreme Court) (Contentious Business) Costs Determinations 2008, 2009 and 2010 as appropriate from time to time;
(ii) the plaintiffs costs to be taxed with the limit under Item 11(a) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 raised to $63,360.00; and
(iii) the taxing officer is to make allowance for the expert witnesses, Geoffrey Stott Redman, Michael Parry, Dr Lewin Bedford-Brown and Laurel Parsons.
5. The parties have liberty to apply generally.
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