Public Trustee v Alzheimer's Australia WA Ltd [No 2]
[2014] WASC 337 (S)
•28 OCTOBER 2014
PUBLIC TRUSTEE -v- ALZHEIMER'S AUSTRALIA WA LTD [No 2] [2014] WASC 337 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 337 (S) | |
| 28/10/2014 | |||
| Case No: | CIV:2063/2010 | 14 OCTOBER 2014 | |
| Coram: | PRITCHARD J | 14/10/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | The plaintiff's and first defendant's costs be paid out of the estate | ||
| B | |||
| PDF Version |
| Parties: | PUBLIC TRUSTEE ALZHEIMER'S AUSTRALIA WA LTD THE PRINCESS MARGARET HOSPITAL FOR CHILDREN FOUNDATION INC ASSOCIATION FOR THE BLIND OF WESTERN AUSTRALIA INC AUSTRALIAN RED CROSS SOCIETY (WESTERN AUSTRALIA DIVISION) TRACEY DALE KITTELTY SHANE BURNETT KITTELTY |
Catchwords: | Costs Question of testamentary capacity of testator Whether costs should be paid from estate Turns on own facts |
Legislation: | Supreme Court Act 1935 (WA) Rules of the Supreme Court 1971 (WA) |
Case References: | Clay v Karlson [2001] WASC 141 De Angelis v Laundy [2014] NSWSC 456 Mitchell v Gard (1863) 3 Sw & Tr 275; (1863) 164 ER 1280 Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 Public Trustee v Alzheimer’s Australia WA Ltd [No 2] [2014] WASC 337 Re Estate of the Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ALZHEIMER'S AUSTRALIA WA LTD
First Defendant
THE PRINCESS MARGARET HOSPITAL FOR CHILDREN FOUNDATION INC
Second Defendant
ASSOCIATION FOR THE BLIND OF WESTERN AUSTRALIA INC
Third Defendant
AUSTRALIAN RED CROSS SOCIETY (WESTERN AUSTRALIA DIVISION)
Fourth Defendant
TRACEY DALE KITTELTY
Fifth Defendant
SHANE BURNETT KITTELTY
Sixth Defendant
Catchwords:
Costs - Question of testamentary capacity of testator - Whether costs should be paid from estate - Turns on own facts
Legislation:
Supreme Court Act 1935 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
The plaintiff's and first defendant's costs be paid out of the estate
Category: B
Representation:
Counsel:
Plaintiff : Ms C F Holyoak-Roberts
First Defendant : Mr M W Fatharly
Second Defendant : Ms K Oaten
Third Defendant : Ms K Oaten
Fourth Defendant : Ms K Oaten
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Solicitors:
Plaintiff : Public Trustee (WA)
First Defendant : Kott Gunning
Second Defendant : King & Wood Mallesons
Third Defendant : King & Wood Mallesons
Fourth Defendant : King & Wood Mallesons
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Cases referred to in judgment:
Clay v Karlson [2001] WASC 141
De Angelis v Laundy [2014] NSWSC 456
Mitchell v Gard (1863) 3 Sw & Tr 275; (1863) 164 ER 1280
Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244
Public Trustee v Alzheimer’s Australia WA Ltd [No 2] [2014] WASC 337
Re Estate of the Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311
- PRITCHARD J:
(This judgment was delivered extemporaneously on 14 October 2014 and has been edited from the transcript.)
1 These proceedings concerned an action commenced by the plaintiff seeking that the Court pronounce the force and validity of the will of Robert Arthur Kittelty, deceased, dated 12 August 2009 (the 2009 Will). On 22 September 2014, I delivered reasons for decision in this matter,1 pronounced the force and validity of the 2009 Will, and made orders that there be a grant of probate in solemn form of law of the 2009 Will to the plaintiff.
2 The plaintiff now seeks an order that his costs be paid from the estate. The first defendant seeks an order that its costs be paid out of the estate. The second to fourth defendants do not seek any order in relation to costs. There is no appearance today, and no application, by the fifth and sixth defendants with respect to costs.
3 The general position is that the Court has a wide discretion under s 37 of the Supreme Court Act 1935 (WA) and O 66 of the Rules of the Supreme Court 1971 (WA) to make costs orders. Of course, that discretion has to be exercised judicially and in accordance with established principle. Probate cases are no different to other cases in the sense that the ordinary starting point on questions of costs is that the general rule is that costs follow the event.2
4 In some probate cases, however, it is not appropriate to adopt that approach and that there are some well recognised exceptions to the general rule in the probate jurisdiction. One of those is that costs may be ordered to be paid out of the estate if the reason for the litigation is the fault of the testator.3 In referring to 'fault', I am not referring to any question of moral culpability,4 but to situations such as those that existed in this case, where as a result of the conduct or situation of the testator, some issue arises in relation to testamentary capacity.5 The second exception is where the circumstances reasonably led to an investigation of the execution of the will or the testator's capacity.6
5 In the present case such an issue arose. Mr Kittlety’s dementia or Alzheimer’s diagnosis led to a question in relation to his testamentary capacity on the day that he executed his final will. In those circumstances, it was proper for the plaintiff to commence proceedings for the grant of probate in solemn form. There is nothing unreasonable in relation to the conduct of the plaintiff which would in any way cast doubt on whether his costs should be paid from the estate.7 The same observation in general terms appears to pertain to the position of the first defendant who quite properly, and necessarily, had to be joined to the proceedings, and has adopted a more confined position in respect of the issues, appearing only when it was, in fact, necessary to ventilate some particular position.
6 Accordingly, I propose to make the orders that are sought by the plaintiff and the first defendant. As I have said, the second to fourth defendants do not seek an order in relation to costs. It has been suggested that I should make an order that the fifth and sixth defendants bear their own costs. No order is sought by the fifth and sixth defendants in respect of costs. They have been on notice of today’s application and hearing. Were there to be any late application made by either of them, there would be an issue as to why it was not brought today. In those circumstances, there is no need for an order to be made that the fifth and sixth defendants should not be the beneficiaries of any costs order or that no order as to costs should be made or in respect of them.
7 It remains, though, for me to deal with a further aspect of the application made by the first defendant, namely that the costs reserved on 13 August 2013 should be paid out of the estate as well. Having considered the submissions of counsel, and having regard to the relatively limited information before me as to what took place on that occasion and on relevant earlier occasions, I have formed the view that it is not appropriate to make an order that the costs to be paid from the estate should include the costs reserved on that date. I have reached that view for two reasons. First, on one view the costs reserved on 13 August 2013 might well have been costs that arguably should properly have been paid by the sixth defendant if, as appears to have been the case, the need for the determination of issues at the hearing on 13 August 2013 arose from the failure by the fifth and sixth defendants to pay costs orders previously made against them. Secondly, it is not entirely clear whether a costs order made by the learned Master on 27 November 2013 which also referred to reserved costs, in fact included the costs reserved on 13 August 2013. In view of that lack of clarity I am not minded to make an order which might otherwise constitute a doubling up of costs orders with respect to the same costs event.
1Public Trustee v Alzheimer’s Australia WA Ltd[No 2] [2014] WASC 337. These reasons should be read in conjunction with those earlier reasons for decision.
2Clay v Karlson [2001] WASC 141 [147] (Roberts-Smith J).
3Mitchell v Gard (1863) 3 Sw & Tr 275, 277; (1863) 164 ER 1280, 1281 (Sir James Wilde).
4De Angelis v Laundy [2014] NSWSC 456 [59] (Hellen J).
5Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 [14] (Giles JA & Brownie AJA).
6De Angelis v Laundy [2014] NSWSC 456 [56] - [57] (Hellen J) and the cases cited therein.
7Re Estate of Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311 [32] (Campbell J).
0
5
2