Perpetual Trustees WA Ltd v Elliott
[2009] WASC 76 (S)
•1 APRIL 2009
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL |
| CITATION | : | PERPETUAL TRUSTEES WA LTD -v- ELLIOTT [2009] WASC 76 (S) |
| CORAM | : HASLUCK J | ||
| HEARD |
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| DELIVERED |
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| SUPPLEMENTARY | |||
| DECISION |
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| FILE NO/S |
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| MATTER |
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| BETWEEN |
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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 in that the court has found that
the deceased had testamentary capacity at the time the subject will was executed. The plaintiff can therefore be characterised as the successful party in respect of the matters in dispute.
Application of the rules
5 In a contested case a successful party will generally be entitled to
recover its costs from the opposing party. However, as appears from the
rules mentioned earlier, there are certain exceptions to this basic rule.6 In the present case I am of the view that the first exception does not
apply. I have held that the deceased had testamentary capacity at the time
[2009] WASC 76
HASLUCK J
the subject will was executed and it was reasonable for her to appoint the plaintiff as executor. The deceased was managing her own affairs at the relevant time with the assistance of her sister and her solicitor. The will she made was straightforward and benefited her son and daughter in equal shares. To my mind, it cannot be said that the testator's actions brought about the litigation. It follows that, in my view, the first exception does not apply.
7 As to the second exception, counsel for the first defendant referred to
four points which might be thought to have excited the suspicion of the court in relation to the subject will with the result that the adversarial stance adopted by the first defendant could be regarded as reasonable. The four points relied upon are set out in the principal judgment.
8 To my mind, the second, third and fourth points are largely
concerned with comparatively minor discrepancies concerning the form of the will and the evidence to be adduced by the plaintiff and are not sufficient to bring the second exception into play.
9 The crucial issue is raised by the first point; that is, as at 26 May
2002 there were indications that the intellectual capacity of the deceased was impaired as evidenced not only by the making of an administration order concerning her affairs in November 2001 but also by the first defendant's observations and certain observations in Dr Kay's reports.
10 However, the fact remains that the first defendant abandoned her
active opposition to the plaintiff's claim on the eve of trial. She did not bring forward evidence to substantiate her adversarial stance and there is no evidence before me at the end of the day verifying her assertions that the deceased lacked testamentary capacity.
11 Further, certain of the first defendant's letters (being those mentioned
in the principal judgment) suggest that the first defendant's opposition was based not upon a genuine concern about a lack of testamentary capacity but upon a determination to oppose the plaintiff's appointment as a means of saving expense. Essentially, the only matter in contention was the appointment of the plaintiff as executor, not the manner in which the estate was to be divided between son and daughter because that remained the same under the 1996 will contended for by the first defendant and under the subject will.
[2009] WASC 76
HASLUCK J
Conclusion
12 In these circumstances I am of the view that the second exception
applies to a limited extent only. There was some justification for the first defendant to contest the subject will because there were certain features of the situation that could be said to have excited the suspicion of the court as to the validity of the subject will. Thus, I do not consider that the first defendant should be required to pay the plaintiff's costs, notwithstanding that the first defendant is the unsuccessful party.
13 However, I cannot overlook that part of the evidence before me
which suggests that the first defendant brought about and continued the dispute in order to advance certain opinions of her own which were not necessarily related to the testamentary capacity of the deceased or the validity of the subject will. Accordingly, in the exercise of my discretionary power as to costs, I do not consider that an order should be made for the first defendant to recover her costs from the estate. Having failed in respect of the issues she contended for, she must meet her own costs. On the other hand, I consider that the plaintiff has acted reasonably throughout in commencing litigation that had to be pursued in order to obtain a ruling that the subject will was valid.
Summary
14 I will make an order allowing for the plaintiff to recover its costs
from the estate. I consider also that the third defendant, as a party with an interest in the matter under the second 2002 will, is entitled to an order for recovery of its costs from the estate upon the basis that it acted reasonably. There will be no order as to the costs of the first defendant to the intent that she will bear her own costs of the litigation.
I will hear from the parties as to the precise form of the orders to be
made.
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