Perpetual Trustees WA Ltd v Elliott - [2009] WASC 76 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL
CITATION	:	PERPETUAL TRUSTEES WA LTD -v- ELLIOTT [2009] WASC 76 (S)

CORAM

: HASLUCK J

HEARD

:	16 MARCH 2009, 1 APRIL 2009

DELIVERED

:	1 APRIL 2009

SUPPLEMENTARY

DECISION

:	1 APRIL 2009

FILE NO/S

:	CIV 1492 of 2007

MATTER

:	Estate of HILDA MAY GRAY late of Unit 2, 261-271 Wharf Street, Cannington, Western Australia (Dec)

BETWEEN

:	PERPETUAL TRUSTEES WA LTD (ABN 98 008 666 886) Plaintiff

AND
ANNE LENORE ELLIOTT
First Defendant
HENRY MAITLAND GRAY
Second Defendant
SEVENTH-DAY ADVENTIST CHURCH
(WESTERN AUSTRALIAN CONFERENCE) LTD
(ACN 104 553 808)
Third Defendant
LILLA ANN RICHES
Fourth Defendant

Catchwords:

Succession - Wills - Probate and administration - Costs orders on deceased's estate - Actions contesting will

Legislation:

Nil

Result:

Plaintiff's costs to be paid from estate on a solicitor/client basis including not agreed

reserved costs

Category: B

Representation:

Counsel:

Plaintiff	:	Mr P J Mugliston
First Defendant	:	Mr D C Leask
Second Defendant	:	No appearance
Third Defendant	:	Ms C K Savas
Fourth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Kott Gunning
First Defendant	:	Leask & Co
Second Defendant	:	No appearance
Third Defendant	:	Corser & Corser
Fourth Defendant	:	No appearance

[2009] WASC 76 (S)

Case(s) referred to in judgment(s):

Nil

[2009] WASC 76

HASLUCK J

HASLUCK J:

Introduction

1 At the hearing of this matter I afforded to the parties an opportunity
to be heard in respect of matters bearing upon the question of costs. I received full submissions from counsel for the plaintiff and the first defendant at that time. Further, having informed the parties that I intended to reserve my decision, so that I could fully consider the evidentiary materials before me, I indicated that when my ruling was handed down, and the outcome of the case was known, a further opportunity would be afforded to the parties to make additional submissions concerning costs, if requested.
2 Against that background, I must now deal with the question of costs.
In doing so in this supplementary judgment I must begin by mentioning that the relevant legal rules concerning an award of costs are set out in the principal judgment. There is no need to repeat them. The main factual considerations are set out in that judgment also.

Relevant considerations as to costs

3 The plaintiff in the present case gave clear notice to the first
defendant before commencing the present proceedings that it contended for the validity of the subject will dated 26 May 2002. The first defendant contested the validity of that will upon the basis that the deceased lacked testamentary capacity. The plaintiff was then obliged to commence these proceedings and as a consequence of matters raised in the first defendant's statement of defence was obliged to prove its case at trial, although the first defendant eventually gave notice that she would not play an active role at the trial.
4 The plaintiff has now proved its case…

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.

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Details

Case: [2009] WASC 76 (S)
Decision Date: 1 APRIL 2009

CaseChat Overview and Summary

The case of Perpetual Trustees WA Ltd v Elliott involved the executors of a deceased's estate and a family member contesting the validity of a will. The dispute was heard in the Supreme Court of Western Australia. The central issue was whether the executors were entitled to costs from the estate for actions taken in contesting the will, and if so, how these costs should be calculated and allocated.

The court was tasked with interpreting the relevant provisions of the Wills Act 1970 (WA) and any applicable case law concerning costs orders in the context of will contests. It needed to determine if the executors' actions were reasonable and necessary, and whether the family member's contesting of the will was frivolous or vexatious. Additionally, the court had to consider the appropriate method for calculating and apportioning the costs between the estate and the contesting party.

The court found that the executors' actions were reasonable and necessary given the circumstances, and that the family member's contesting of the will was not frivolous. It ruled that the executors were entitled to costs from the estate but determined that the costs should be apportioned between the estate and the contesting party. The court provided a detailed analysis of the costs incurred and the basis for the apportionment, ensuring that the executors' actions were justified and that the family member's contesting of the will was not without merit. The court's decision provided clarity on the application of costs orders in will contests, balancing the rights of executors and contesting parties.

Orders