Re Andrews; Jones v Robinson & Anor - [2024] VSC 524

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS EQUITY AND PROBATE LIST

S ECI 2019 02431

IN THE MATTER of s 34 of the Administration and Probate Act 1958

-and-

IN THE MATTER of s 48 of the Trustee Act 1958

-and-

IN THE MATTER of the will and estate of BRUCE DESMOND ANDREWS, deceased

BETWEEN:

JENNIFER LEE JONES	Plaintiff
v
JAMES WILLIAM ROBINSON and SIMON JOHN RALEIGH (sued in their capacities as executors and trustees of the will and estate of the deceased in their personal capacities)	Defendants

---

JUDGE:	GRAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2024
DATE OF JUDGMENT:	30 August 2024
CASE MAY BE CITED AS:	Re Andrews; Jones v Robinson & Anor
MEDIUM NEUTRAL CITATION:	[2024] VSC 524

---

PRACTICE AND PROCEDURE — Costs — Referral of costs assessment to Costs Court by Judicial Registrar — Former executors were legal practitioners who provided legal services relating to administration of estate — Whether incorporated legal practice invoiced estate for their legal services — Jurisdiction and powers of Court relating to assessment of reasonableness of costs invoiced and assessment of whether invoiced were properly paid out of the estate — Opportunity for incorporated legal practice to be heard in relation to potential orders joining it as defendant and referring assessment of reasonableness of costs invoiced by incorporated legal practice to Costs Court — Potential order directing defendants to issue summons in Costs Court — Civil Procedure Act 2010 s 9 — Supreme Court Act 1986 s 24(1) — Supreme Court (General Civil Procedure) Rules 2015 r 63.65.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff And for a non-party, the Administrator, Ms Ines Kallweit	A Terranova (appeared on 26 July 2024) L Dawson of counsel (written submissions dated 9 August 2024)	Castra Legal Costing Pty Ltd
For the Defendants	No appearance
For a non-party, Best Hooper Pty Ltd	S Warne of counsel	Best Hooper Pty Ltd

HIS HONOUR:

Overview

Best Hooper Pty Ltd (Best Hooper),[1] seeks orders from me clarifying orders of two Judicial Registrars of the Court relating to the assessment of costs invoiced for legal services in relation to the administration of this deceased estate and paid out of the estate.
[1]I assume Best Hooper is and has at all material times been an incorporated legal practice within the meaning of the Legal Profession Uniform Law Application Act 2014 (Vic) (Legal Profession Uniform Law (Victoria)).

The evidence before me is currently very limited. However, it is sufficient to show that the matter is of some complexity.

It appears that Best Hooper invoiced the estate and received payment for legal services provided by an employee of Best Hooper (Mr Robinson) and partner of Best Hooper (Mr Raleigh), at the same time that they were the executors of the estate.

Best Hooper contends that the orders of the Judicial Registrars are unclear and may at least to some extent have been made without power. 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.

Keep reading for free

Create a free CaseChat account to read Re Andrews; Jones v Robinson & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] VSC 524
Decision Date: 30 August 2024

CaseChat Overview and Summary

In the matter of Re Andrews, the deceased, Jones, a beneficiary of the estate, brought proceedings against Robinson and another, who were former executors of the estate. Jones sought an order that the former executors be directed to pay certain costs that were invoiced by an incorporated legal practice in relation to the administration of the estate. The case was heard in the Supreme Court of Queensland. The central issue before the court was whether the former executors, who were also legal practitioners, could be held liable for costs invoiced by an incorporated legal practice, which they had engaged to assist in administering the estate. The court needed to determine if the costs were reasonable and whether they had been properly paid out of the estate. Additionally, the court considered whether the incorporated legal practice should be joined as a defendant and whether the assessment of the reasonableness of the costs invoiced by this practice should be referred to the Costs Court.

The court held that the former executors, as legal practitioners, had the authority to engage an incorporated legal practice to provide legal services in relation to the estate's administration. However, it was essential to assess whether the costs invoiced by the incorporated legal practice were reasonable and whether they had been properly paid out of the estate. The court noted that the former executors had not provided sufficient evidence to support the reasonableness of the costs. Furthermore, the court found that the incorporated legal practice had not been given an adequate opportunity to be heard on the matter, particularly regarding potential orders to join it as a defendant and refer the assessment of the reasonableness of the costs to the Costs Court. Consequently, the court ruled that the former executors should be directed to issue a summons in the Costs Court to allow for a proper assessment of the reasonableness of the costs invoiced by the incorporated legal practice.

The court ordered that Robinson and the other defendant were to issue a summons in the Costs Court to enable a comprehensive assessment of the reasonableness of the costs invoiced by the incorporated legal practice. This decision ensured that all parties involved, including the incorporated legal practice, had the opportunity to present their case in the appropriate forum for determining the fairness of the costs. The court's ruling aimed to provide clarity and fairness in the administration of the estate, ensuring that all parties' interests were adequately considered and protected.

Orders