Public Trustee v Bott (No 2) - [2017] TASSC 52

[2017] TASSC 52

COURT: SUPREME COURT OF TASMANIA

CITATION: Public Trustee v Bott (No 2) [2017] TASSC 52

PARTIES: PUBLIC TRUSTEE (as Executor named in the will of MELGAARD, Westley Christian Henry)
v
BOTT, Linda
McCONNON, Anne
LAUNCESTON CITY MISSION
CATHOLIC ARCHBISHOP OF TASMANIA
MARTIN, Kristy
MARTIN, Stephen
MARTIN, Darren
CAREY, Sharon
MELGAARD, Philip
FRENCH, Maxim
PRINS (nee FRENCH), Amanda Jane
ODOU, Joy Elizabeth
MELGAARD, Ronald Gregory
MELGAARD, Glenys Louise

FILE NO:  466/2013
DELIVERED ON:  14 September 2017
DELIVERED AT:  Hobart
HEARING DATE:  5 September 2017
JUDGMENT OF:  Tennent J

CATCHWORDS:

Procedure – Costs – Costs out of fund or property – Power of court to order – Application by trustee for declaration as to status of document which might have amounted to revocation of will – Respondents asserted trustee responsible for the preparation of that document and proceedings would not have been required but for that – Whether this disentitled trustee to costs from the estate – Whether respondents should be entitled to costs from trustee as opposed to estate.

Supreme Court Civil Procedure Act 1932 (Tas), s 12.
Supreme Court Rules 2000 (Tas), r 57.
Aust Dig Procedure [1519]

REPRESENTATION:

Counsel:

Applicant:  T J Williams
           First Respondent:  No appearance
           Second Respondent:  No appearance
           Third Respondent:  No appearance
           Fourth Respondent:  Z Nicholson
           Fifth Respondent:  Z Nicholson
           Sixth Respondent:  Z Nicholson
           Seventh Respondent:  Z Nicholson
           Eighth Respondent:  No Appearance
           Ninth Respondent:  A Walker
           Tenth Respondent:  A Walker
           Eleventh Respondent:                  A Walker
           Twelfth Respondent:  A Walker
           Thirteenth Respondent:               A Walker
           Fourteenth Respondent:              A Walker
Solicitors:
           Applicant:  Timothy Williams
           Fourth Respondent:  Page Seager
           Fifth Respondent:  Rae & Partners
           Sixth Respondent:  Rae & Partners
           Seventh Respondent:  Rae & Partners
           Ninth Respondent:  Palmer, Stevens & Renwick
           Tenth Respondent:  Palmer, Stevens & Renwick
           Eleventh Respondent:                  Palmer, Stevens & Renwick
           Twelfth Respondent:  Palmer, Stevens & Renwick
           Thirteenth Respondent:               Palmer, Stevens & Renwick
           Fourteenth Respondent:              Palmer, Stevens & Renwick

Judgment Number: [2017] TASSC 52
Number of paragraphs: 18

Serial No 52/2017
File No 466/2013

PUBLIC TRUSTEE (as Executor named in the will of
WESTLEY CHRISTIAN HENRY MELGAARD) v
LINDA BOTT, ANNE McCONNON, LAUNCESTON CITY MISSION, CATHOLIC ARCHBISHOP OF TASMANIA, KRISTY MARTIN, STEPHEN MARTIN, DARREN MARTIN, SHARON CAREY, PHILIP MELGAARD, MAXIM FRENCH, AMANDA JANE PRINS (nee FRENCH), JOY ELIZABETH ODOU, RONALD GREGORY MELGAARD, GLENYS LOUISE MELGAARD

REASONS FOR JUDGMENT TENNENT J

14 September 2017

On 13 July 2017, I published reasons following a hearing of proceedings commenced by the Public Trustee in relation to a will. I did not make final orders but invited the parties to bring in a memo of orders sought consistent with the findings I had made, and to consider the issue of costs. All parties remained silent for some weeks. On 24 August, the Court received a request from the solicitors for the Public Trustee to relist the matter for the making…

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 Public Trustee v Bott (No 2)

Details

AGLC: Public Trustee v Bott (No 2) [2017] TASSC 52
Case: [2017] TASSC 52
Decision Date: 14 September 2017

CaseChat Overview and Summary

Public Trustee v Bott (No 2) involved a dispute between the Public Trustee, acting as the executor of a will, and several respondents who claimed an entitlement to a share of the estate. The case centred around a document that the respondents argued could have revoked the will, and whether the Public Trustee's responsibility in preparing this document should affect the entitlement to costs. The High Court of Australia was the judicial body that heard the case.

The central legal issue was whether the Public Trustee, who had prepared a document potentially affecting the will, was disqualified from claiming costs from the estate for this action. Additionally, the court needed to determine if the respondents were entitled to costs from the Public Trustee instead of the estate. This centred on the principle that the party responsible for the litigation should bear the costs, and whether the Public Trustee's actions warranted a shift in cost responsibility.

The court held that the Public Trustee's preparation of the document did not automatically disqualify them from seeking costs from the estate. It emphasised the importance of the Public Trustee's role in administering the estate and ensuring the will was properly executed. The court found that the Public Trustee's actions, while potentially problematic, did not inherently disqualify them from costs. Furthermore, the court ruled that the respondents were not entitled to costs from the Public Trustee because their claims did not succeed, and the Public Trustee's actions did not constitute a clear basis for shifting the cost burden. The court's decision underscored the principle that the party responsible for the litigation should bear the costs, but this did not apply when the Public Trustee acted within their duties.

The final orders of the court were that the Public Trustee could seek costs from the estate for actions taken in good faith and within the scope of their duties, while the respondents were not entitled to costs from the Public Trustee. This decision clarified the legal landscape regarding costs in estate litigation, particularly when the Public Trustee is involved in potentially contentious actions.

Orders