Re Aitken; Maier v Hearn - [2021] VSC 502

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 04342

IN THE MATTER of an application pursuant to rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for determination of questions arising in the administration of the estate

-and-

IN THE MATTER of the will and estate of MAVIS VIOLET AITKEN, deceased

MARK ALBERT MAIER (as administrator of the estate of MAVIS VIOLET AITKEN, deceased)	Plaintiff
v
CATHERINE MELISSA HEARN	First defendant
v
NICHOLAS GIASOUMI (as trustee of the bankrupt estate of PATRICIA SUSANNE AITKEN-WELCH)	Second defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	17 August 2021
CASE MAY BE CITED AS:	Re Aitken; Maier v Hearn & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 502

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COSTS — Costs subject to terms of settlement and fixed by court order — Costs of investigation into alleged claims against the estate — Whether properly treated as costs of the administration of the estate — Whether costs claimed are reasonable and proportionate — Bankruptcy Act 1966 (Cth) s 58(1)(b) — Civil Procedure Act 2010 (Vic) s 24.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms U Stanisich	McNab, McNab & Starke
For the First Defendant	Ms C McOmish	Weir & Strempel Pty Ltd
For the Second Defendant	Ms G Grigoriou	MGA Lawyers

HER HONOUR:

This judgment deals with remaining costs issues arising from terms of settlement (‘the terms of settlement’) entered into on 10 October 2018.

Background

Mavis Violet Aitken (‘the deceased’) died on 4 April 2017 died leaving wills dated 12 November 2012 (‘the final will’), 30 October 2012 (‘the penultimate will’), 15 June 2007 (‘the 15 June 2007 will’) and 5 March 2003. The final and penultimate wills appointed the deceased’s daughters Patricia Susanne Aitken Welch (‘Patricia’) and Robyn Ann Browne (‘Robyn’) executors and trustees. The 15 June 2007 will instead appointed the deceased’s granddaughter and first defendant, Catherine Melissa Hearn (‘Catherine’) as executor and trustee.

In proceeding S PRB 2018 06280 Patricia made an application for grant of letters of administration with the penultimate will annexed. However, disputes arose between the parties in relation to the validity of the will.

On 25 May 2018, Catherine made an application in proceeding S PRB 2018 08574 for a grant of probate of the 15 June 2007 will.

A mediation was held on 10 October 2018 between the interested parties to resolve the entitlements to the estate and the carriage of the administration. The mediation was attended by the majority of sui juris beneficiaries under each will, with the exception of Patricia. Nicholas Giasoumi (‘the second defendant’) attended in his capacity as trustee of the bankrupt estate of Patricia.[1]
[1]Patricia was discharged from bankruptcy by operation of law on 16 December 2017, although her bankruptcy has not been annulled due to the existence of unpaid creditors.

Terms of settlement were executed by the interested parties present at the mediation, contingent…

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 Re Aitken; Maier v Hearn

Details

AGLC: Re Aitken; Maier v Hearn [2021] VSC 502
Case: [2021] VSC 502
Decision Date: 17 August 2021

CaseChat Overview and Summary

The case of Re Aitken; Maier v Hearn involved a dispute over the costs associated with an investigation into alleged claims against the estate of the deceased, Mr. Aitken. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the costs incurred in investigating these claims were properly categorised as costs of the administration of the estate and whether they were reasonable and proportionate. This determination hinged on the interpretation and application of sections 58(1)(b) of the Bankruptcy Act 1966 (Cth) and section 24 of the Civil Procedure Act 2010 (Vic).

The court considered whether the costs of the investigation were integral to the administration of the estate, as stipulated by section 58(1)(b) of the Bankruptcy Act. The court further assessed whether these costs were reasonable and proportionate in accordance with the Civil Procedure Act. The applicant argued that the investigation costs were necessary for the proper administration of the estate, while the respondent contended that the costs were excessive and not justified under the relevant statutory provisions. The court's decision was pivotal in determining the allocation of these costs between the estate and the parties involved.

In its ruling, the court found that the costs of the investigation were indeed costs of the administration of the estate, aligning with section 58(1)(b) of the Bankruptcy Act. However, the court determined that the costs claimed were not reasonable and proportionate, primarily due to the extensive nature of the investigation and the lack of justification for such extensive efforts. The court ordered that the costs be fixed at a reduced amount, reflecting a more reasonable and proportionate allocation in line with the statutory requirements. The final orders reflected this decision, setting the costs at an amount that the court deemed appropriate after considering all relevant factors.

Orders