Re Anderson (No 2) - [2017] VSC 463

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2016 09752

IN THE MATTER of the will and estate of LORNA LOUISE ANDERSON, deceased

BETWEEN

ANTHONY CHRISTOPHER HILL	Plaintiff
v
ANNETTE LEE ROWAN and SUSAN HARTIGAN	Applicants

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	11 August 2017
CASE MAY BE CITED AS:	Re Anderson (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 463

---

COSTS—Application for revocation of probate—Where applicants relied on grounds of testamentary undue influence and fraud against non-party—Where non-party appeared and made submissions in response to allegations—Where grounds struck out or dismissed—Whether costs should be ordered in favour of non-party—Whether special or unusual feature or special circumstances exist—Indemnity costs—O’Keefe v Hayes Knight GTO Pty Ltd [2005] FCA 1559—Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189—Supreme Court Act 1986, s 24(1)

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	McCluskys
For the Applicants	Ms R G Morison	Batten Sacks
For Janette Williams	Mr N J McOmish	Armstrong Legal

HER HONOUR:

Introduction

By summons, the applicants sought revocation of the grant of probate of the will of their aunt, Lorna Louise Anderson (‘the deceased’). Two of the three grounds relied upon by the applicants were contested by the plaintiff and by Janette Williams, also a niece of the deceased.

The particulars of the two contested grounds alleged testamentary undue influence and testamentary fraud on the part of Janette and another niece of the deceased, Michelle Luca, in respect of the deceased. Their conduct was at the centre of the application for revocation of the grant of probate. Prior to their application, the applicants had alleged, amongst other matters, a failure by the deceased to provide them with sufficient provision. This allegation was misconceived as the applicants are not eligible persons under the relevant legislative scheme.[1]
[1]See Part IV of the Administration and Probate Act 1958.

Janette and Michelle were named in the applicants’ summonses filed 16 January 2017 and 13 April 2017 respectively and in the affidavits filed in support of their application. Janette retained solicitors and counsel on her behalf. Her counsel appeared at the first directions hearing on 3 March 2017, at two further directions hearings on 31 March 2017 and 7 April 2017, at the hearing on 12 May 2017 and on the handing down of judgment on 16 June 2017. Objection was not taken by the applicants to Janette being represented at any time. On 16 June 2017, the applicants’ two contested grounds were struck out and dismissed respectively.[2]
[2]Re Anderson [2017] VSC 338 (16 June 2017).

Following judgment, the solicitors for the applicants informed the Court that a dispute remained between the applicants and Janette as to her costs. It was agreed that the dispute be determined on the papers.

Janette seeks her costs be paid, on an indemnity basis, by the applicants in respect of the…

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 Anderson (No 2)

Details

AGLC: Re Anderson (No 2) [2017] VSC 463
Case: [2017] VSC 463
Decision Date: 11 August 2017

CaseChat Overview and Summary

In the case of Re Anderson (No 2), the application for revocation of probate was brought before the court by the applicants, who sought to challenge the validity of a will based on claims of undue influence and fraud. The non-party, who was not directly involved in the estate proceedings but was implicated by the applicants' allegations, appeared in court and actively participated in the proceedings by making submissions in response to the claims made against them. The legal issues that the court was required to decide centred on whether the applicants' claims against the non-party were substantiated and if so, whether costs should be awarded in favour of the non-party due to the unsuccessful nature of the claims.

The court examined the nature of the claims made by the applicants against the non-party and considered whether the allegations of undue influence and fraud were substantiated. The court found that the applicants' claims were either struck out or dismissed, indicating a lack of evidence to support their allegations. Given this outcome, the court considered whether the non-party should be awarded costs under the Supreme Court Act 1986, section 24(1), which allows for indemnity costs in cases where special or unusual features or special circumstances exist. The court referred to relevant case law, including O’Keefe v Hayes Knight GTO Pty Ltd [2005] FCA 1559 and Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, to guide its decision on the appropriate allocation of costs.

After reviewing the evidence and the applicable legal principles, the court determined that the non-party was entitled to indemnity costs due to the lack of merit in the applicants' claims and the absence of any special or unusual features or special circumstances that would warrant a different outcome. The court ordered that the applicants should pay the non-party's costs of the application, reflecting the unsuccessful nature of the proceedings against them. This decision underscores the importance of careful consideration of the merits of claims before proceeding with litigation, as well as the potential consequences for parties who bring unfounded allegations in legal proceedings.

Orders