Plowright v Burge
[2006] VSC 69
•2 March 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 4111 of 2005
IN THE MATTER of an application pursuant to s 21 of the Wills Act 1997
and
IN THE MATTER of the Will of Pamela Margaret Wilson
and
IN THE MATTER of an application by RONALD DAVID PLOWRIGHT for an order authorising a Will to be made in specific terms pursuant to s 21 of the Wills Act 1997.
| RONALD DAVID PLOWRIGHT | Plaintiff |
| v | |
| GEOFFREY RONALD BURGE | Defendant |
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JUDGE: | Hansen J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF JUDGMENT: | 2 March 2006 | |
CASE MAY BE CITED AS: | Plowright v Burge | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 69 | |
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Costs – Statutory will – Will authorised to be made – Wills Act 1997 s 21, 26 – Costs of plaintiff and defendant
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S P Newton | Hunter Newns |
| For the Defendant | Mr T R Messer | Wightons Lawyers |
HIS HONOUR:
The plaintiff brought this proceeding for the making of a will pursuant to s 21 of the Wills Act 1997 in his capacity of administrator of the estate of his sister Pamela Margaret Wilson who as a result of injuries suffered in a fall from a horse on 10 August 1997 does not have testamentary capacity. Earlier, on 29 November 1994, she had made a will in which she appointed Geoffrey Ronald Burge her executor and trustee and after providing for legacies aggregating $50,000 to two nieces and a son left the residue of her estate to Mr Burge should he survive her for 30 days but if not then to the Geelong Hospice Care Association.
In the will that the plaintiff proposed be made pursuant to s 21, the plaintiff replaced Mr Burge as executor and trustee and Mr Burge was removed as the residuary beneficiary. The specific legacies remained and the residue went to the Geelong Hospice.
As filed on 20 January 2005 the only party to the originating motion was the plaintiff. Subsequently, on 24 February 2005, Mr Burge was made the defendant to the proceeding. Thereafter the parties filed affidavits and the proceeding came on for trial before me on 30 August 2005. Mr Burge opposed the application.
On 16 September 2005 I ordered that the plaintiff have leave to apply pursuant to s 21 for an order authorising a will to be made for Mrs Wilson and that a will in the form proposed by the plaintiff be made for her pursuant to s 21. I also reserved the question of costs and adjourned the proceeding to a date to be fixed. In making the orders under s 21 I was satisfied as to the requirements of s 26(b) and (c), namely that the proposed will accurately reflected the likely intentions of Mrs Wilson if she had testamentary capacity (which she did not), and that it was reasonable in all the circumstances to authorise the making of the will.
On 16 December 2005 I published my reasons for the orders made on 16 September 2005[1]. With the concurrence of the parties I ordered that the question of costs be dealt with on written submissions which I directed be filed by 4.00 pm on 24 February 2006.
[1]Plowright v Burge [2005] VSC 490.
Counsel for the plaintiff and the defendant having provided me with their written submissions I now rule on the matter of costs.
Counsel for the plaintiff submitted that the defendant should be ordered to pay the plaintiff’s costs of the proceeding but limited to the costs incurred as a result of the defendant’s opposition to the application. This submission acknowledged that the plaintiff had had to commence the application and must therefore have incurred costs in any event. It was further submitted that the costs to be paid by the defendant should be paid on an indemnity or solicitor and client basis. This submission was put on the following basis, in substance. The defendant could have stood aside and let the application proceed unopposed. Rather than take that course he came into the proceeding and actively opposed it, not out of appropriate regard for Mrs Wilson but opportunistically for his own financial gain. Moreover, as the Court found, the defendant gave false evidence in seeking to advance, and give credence to, his opposition. He falsely represented the nature of his relationship with Mrs Wilson. His behaviour was equivalent to seeking to obtain a financial advantage by deception.
Counsel for the defendant submitted that the defendant should have his costs or, alternatively, that there should be no order for costs. He pointed out that the defendant was brought into the proceeding at the behest of the plaintiff as a person with a genuine interest in the matter. It was a benefit to the Court to have the defendant participate in the case. Further there were real questions on the evidence as to satisfaction of the requirements of s 26(b) and (c). As to those matters the defendant’s opposition was not frivolous. Further, he was seeking to maintain the continuance of the 1994 will under which he would, by law, have an entitlement as the residuary beneficiary. Finally, it was not appropriate to order costs on an indemnity or a solicitor and client basis.
I do not propose to set out the findings and reasoning in my judgment of 16 December 2005. To the extent necessary that judgment must be read with this.
On questions of costs it is important to bear in mind the actual circumstances of the particular case. In this case the plaintiff brought the application as administrator of Mrs Wilson’s estate. He had no personal financial interest in the outcome. He did not stand to gain, or lose, by the application succeeding or failing. He was a disinterested administrator. As such, in my view, he would at least normally be entitled to recoup his costs out of the estate of the represented person. That does not mean that where appropriate he may not recover costs from another party.
Then, as to the defendant, he did not initiate a claim for a statutory will in his favour but opposed the application seeking to retain the benefit for himself under the 1994 will. It is true, however, that in opposing the application he went far beyond the mere testing of the application to the area of positively advancing false evidence to bolster his opposition.
It is immediately apparent that the present case is quite unlike that in Boulton v Sanders[2] where the plaintiff was not a disinterested person but a person who sought a statutory will for her own benefit. On her case being dismissed she was ordered to pay the defendants’ costs of the proceeding on a party and party basis and an appeal against that order was dismissed. It is readily to be understood that in such a case the principle that costs follow the event was applied. If it were not, as Byrne J observed in Hill v Hill[3] the estate of the person for whom a will is sought to be made would be diminished. It is thus that in Boulton[4] Dodds-Streeton AJA, in whose judgment Ormiston and Charles JJA agreed, said that:
“Where an application is brought by and for the benefit of persons including the applicant, rather than by a disinterested administrator, the ordinary principles governing costs in adversarial litigation properly apply. It should not be presumed that the estate, rather than an unsuccessful applicant, will be ordered to pay the costs of the proceeding merely because there is ‘a fair case of dispute’.”
[2](2004) 9 VR 495.
[3][2001] VSC 83.
[4]At 521 [153].
Returning to the plaintiff’s submission, it seems impractical to require the defendant to pay the plaintiff’s costs incurred as a result of the defendant’s opposition. The submission does not distinguish between, on the one hand, costs occasioned by the advancing of false evidence and, on the other hand, costs otherwise incurred by reason of opposition to the application. And it is difficult to discern where the line would be drawn between costs in the latter category and costs that must have been incurred in any event by the plaintiff in bringing the proceeding to hearing and determination. There is substance in the submission that the defendant possessed a genuine interest and properly participated in the proceeding to test the application with a view to retaining the benefit which he had under the 1994 will. He was entitled to do that. He did not initiate. He responded. Against that consideration of course is that in responding he overreached into the realm of advancing evidence which falsely described his relationship with Mrs Wilson. He did so, as I concluded at [184] of my judgment, for the purpose of raising issues of fact that would tend to reduce the chance of the plaintiff establishing satisfaction of the matters in s 26(b) and (c). And, as I found at [186], the defendant gave false evidence in an attempt to bolster his case and lead the Court from the truth. These were serious matters and are properly to be taken into account in determining the appropriate order for costs.
In my view, having considered all that counsel submitted and the relevant circumstances of the case, the appropriate and just disposition on costs is that:
(a)the plaintiff’s costs of the proceeding as between solicitor and client, and including reserved costs, be paid out of the estate of Mrs Wilson, and
(b) there be no order for the costs of the defendant.
I will order accordingly.
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