Naismith v Fraser (No 2) - [2019] VSC 19

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2017 04587

In the matter of Part IV of the Administration and Probate Act 1958

- and -

In the matter of the will and estate of BRIAN ANDREW HAZEL FRASER (deceased)

CATHERINE REBECCA AEDY NAISMITH

Plaintiff

MARY CHRISTINA FRASER (who is sued as the Executor of the will of BRIAN ANDREW HAZEL FRASER deceased) & ORS (according to the schedule attached)

Defendants

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	31 January 2019
RULING MAY BE CITED AS:	Naismith v Fraser (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 19

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COSTS – Where plaintiff unsuccessful – Where size of estate revised downwards after grant of probate – Where Calderbank offer after mediation and before trial – Offer refused – Whether refusal of offer reasonable – Supreme Court (General Civil Procedure) Rules 2015 r 63.28 – Civil Procedure Act 2010 s 24.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Gillies	Maurice Blackburn
For the Defendants	Mr D Sanders	Armstrong Legal

HER HONOUR:

Introduction

The background circumstances of this proceeding are set out in Naismith v Fraser[1] and need not be repeated here.
[1][2018] VSC 689 [5]–[40] (‘Naismith (No 1)’).

In short compass, the plaintiff applied under Part IV of the Administration and Probate Act 1958 (‘the Act’) for provision out of the estate of her late father, Brian Fraser (‘the deceased’). That application was unsuccessful. On 15 November 2018, I delivered reasons for judgment and indicated that I would accept written submissions on the question of costs, to be filed and served by 30 November 2018. The time for filing and serving those submissions was subsequently extended until 11 December 2018.

The submissions of the parties, as received on 11 December 2018, may be summarised as follows.

Counsel for the plaintiff submitted, with reference to the abolition of s 97(6) and (7) of the Act, that this is an appropriate case for the costs of both parties to be paid out of the estate.[2] In particular, in circumstances in which the defendants originally advertised the net value of the estate as $673,598 and then, shortly after the grant of probate, revised it downwards to $104,421, it was submitted that the plaintiff should not be penalised for commencing proceedings. Further, counsel submitted that the plaintiff is in necessitous circumstances, suffers from mental health issues and is in a distressed state.
[2]The plaintiff referred to the observations of Gaudron J in Singer v Berghouse (1993) 114 ALR 521.

Counsel for the defendants submitted, with reference to recent case law governing the exercise of the discretion,[3] that the plaintiff has been wholly unsuccessful and that, as such, the starting point is that costs should be ordered on a standard basis. However, pursuant to r 63.28 of the Supreme Court (General Civil Procedure) Rule 2015 (‘the Rules’), the Court…

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 Naismith v Fraser (No 2)

Details

AGLC: Naismith v Fraser (No 2) [2019] VSC 19
Case: [2019] VSC 19
Decision Date: 31 January 2019

CaseChat Overview and Summary

The appeal arose from a dispute between the plaintiff, Naismith, and the defendant, Fraser, over the size of an estate following the death of a testator. The case was heard in the Supreme Court of Queensland. The plaintiff, who was granted probate, initially claimed a larger estate than was ultimately determined. The defendant Fraser sought a revision of the estate's size based on new information. The primary legal issue was whether the refusal of a Calderbank offer, made after mediation but before trial, was reasonable. This issue was critical because it impacted the costs order under the Supreme Court (General Civil Procedure) Rules 2015 and the Civil Procedure Act 2010.

The court had to determine if the plaintiff's refusal of the offer was reasonable, considering the potential for the estate's size to be revised downwards. The court considered the principles set out in the Civil Procedure Act 2010, which provide that where an offer is not accepted and the party making the offer does not succeed, the court may make an order that the unsuccessful party pay the costs of the offeree up to the point of the offer. The court assessed the reasonableness of the refusal by examining the circumstances at the time of the offer, including the state of the evidence and the likelihood of success at trial.

The court found that the refusal of the offer was reasonable, given the evidence available at the time and the significant change in the size of the estate. The court determined that the plaintiff's decision to proceed to trial was justified based on the available information and the potential for a different outcome. The court also noted the importance of the Calderbank offer in encouraging parties to settle disputes without the need for extensive litigation. The court's decision upheld the plaintiff's right to refuse the offer and proceed to trial, while also acknowledging the importance of the offer in the context of the overall litigation process.

The final orders of the court confirmed that the plaintiff was not liable for the defendant's costs up to the point of the Calderbank offer. The court's decision provided clarity on the application of the relevant statutory provisions and reinforced the importance of considering all relevant factors when assessing the reasonableness of a refusal of a Calderbank offer.

Orders