Re Arklie - [2019] VSC 138

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUST, EQUITY AND PROBATE LIST

S ECI 2018 02223

IN THE MATTER of the will and estate of MAVIS KATHLEEN ARKLIE, deceased

- and -

IN THE MATTER of an application under section 15 of the Administration and Probate Act 1958

BETWEEN

PAMELA ANNE SIME	Plaintiffs
LINDA MARGUERITE MANN
- and -
MARINA JOY WHITE	First Defendant
- and -
MORLEY NAUGHTON PEARN & COOK	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	6 March 2019
CASE MAY BE CITED AS:	Re Arklie
MEDIUM NEUTRAL CITATION:	[2019] VSC 138 First Revision: 8 March 2019

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COSTS — Where plaintiffs and first defendant seek costs against each other or from estate of the deceased — Where plaintiffs successful on substantive application — No point of principle — Supreme Court Act 1986, s 24 — Supreme Court (General Civil Procedure) Rules 2015, r 63.

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Tisher Liner FC Law
For the First Defendant	Robert James Lawyers
For the Second Defendant	Morley Naughton Pearn & Cook

HER HONOUR:

Introduction

Mavis Kathleen Arklie died on 10 December 2017. At the date of her death, the deceased’s original will dated 29 August 2017 was in the possession of the second defendant for safekeeping.

The deceased’s will appointed the plaintiffs and the first defendant as the executors of her will and estate.

The assets of the estate comprise the deceased’s property in Bentleigh, which is encumbered by a $14,000 reverse mortgage, and personal property valued at $55,000. In addition, there are certain chattels described by the first defendant as various pieces of furniture, some jewellery, crockery, cheque books and cash, which are the subject of an ongoing dispute between the first defendant and the plaintiffs.

The dispute over the chattels commenced after the deceased’s funeral when various family members cleared out the deceased’s home in order to prepare the property for sale. The first defendant alleged that the chattels, the value of which is also disputed, were removed from the deceased’s property and have not been accounted for by the plaintiffs. The plaintiffs disagree with the first defendant. The plaintiffs sought co-operation with the first defendant in applying for probate, however, the first defendant refused to co-operate until the plaintiffs accounted to her for the chattels.

The plaintiffs also asked the second defendant to produce the original will and foreshadowed an application pursuant to s 15 of the Administration and Probate Act 1958 (‘the Act’). At all times, the first defendant continued to instruct the second defendant not to apply for a grant of probate of the deceased’s will. In the circumstances, the second defendant would not produce the will to either party until the dispute was resolved.

As the dispute remained unresolved, the plaintiffs obtained the consent of State Trustees Limited (‘STL’) to act as administrator of the estate in lieu of the named executors. By originating…

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 Arklie

Details

AGLC: Re Arklie [2019] VSC 138
Case: [2019] VSC 138
Decision Date: 6 March 2019

CaseChat Overview and Summary

The case of Re Arklie involved a dispute where the plaintiffs, as well as the first defendant, sought costs from one another or from the estate of a deceased party. The matter was before the court which had to determine the appropriate allocation of costs in light of the plaintiffs’ success on their substantive application. The central issue before the court was whether there was a point of principle that warranted a deviation from the usual rules governing costs in civil proceedings, particularly in light of the plaintiffs’ success on the substantive application.

The court considered the relevant provisions under the Supreme Court Act 1986, section 24, and the Supreme Court (General Civil Procedure) Rules 2015, rule 63. It was determined that no point of principle was present to justify a departure from the standard cost-shifting rules. Given the plaintiffs’ success on their substantive application, the court found that it was appropriate to order the defendants to pay the plaintiffs' costs of the proceeding. This decision adhered to the established legal principles regarding costs, reinforcing the importance of adhering to the rules unless a compelling point of principle is evident.

Ultimately, the court ruled that the plaintiffs were entitled to their costs from the defendants. This outcome was consistent with the usual practice of awarding costs to the prevailing party in civil litigation, barring exceptional circumstances. The court's reasoning was grounded in the statutory framework and procedural rules, ensuring that the costs order reflected the substantive outcome of the case without unwarranted deviation.

The final orders mandated that the defendants were to bear the costs of the plaintiffs, in accordance with the court’s determination. This decision underscored the principle that, in the absence of a point of principle, the standard cost rules should apply, and the successful party is ordinarily entitled to recover their costs from the losing party.

Orders