| 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 |
---
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 |
---
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.
---
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…
Continue reading Re Aitken; Maier v Hearn
Sign in free to access the full text
- AGLC
- Re Aitken; Maier v Hearn [2021] VSC 502
- Case
- [2021] VSC 502
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.