Re Ash; Ash v Ash-Grimm
[2018] VSC 687
•12 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2018 12228
IN THE MATTER of the will and estate of GRAHAM BARRY ASH, deceased
| TANIA ANNA LOUISE ASH | Plaintiff |
| v | |
| ANNALIESE ASH-GRIMM (by her litigation guardian VANESSA MARIA ASH) | Caveator |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 November 2018 |
DATE OF JUDGMENT: | 12 November 2018 |
CASE MAY BE CITED AS: | Re Ash; Ash v Ash-Grimm |
MEDIUM NEUTRAL CITATION: | [2018] VSC 687 |
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COSTS —Where caveator withdrew her grounds of objection to the grant of letters of administration — Where caveator seeks her costs on a standard basis from the estate of the deceased — Where caveator brings her application by her litigation guardian — Where caveator’s application misconceived and without a proper basis — Supreme Court Act 1986, s 24.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Smith of counsel for plaintiff | Hartwell Legal Pty Ltd |
| For the Caveator | Mr R Miller of counsel for the caveator | Neille Ogge Lawyers |
HER HONOUR:
Background
By originating motion filed 26 July 2018, the plaintiff seeks a grant of letters of administration with the will dated 27 September 2016 annexed of Graham Barry Ash deceased. The deceased died on 26 April 2018.
The caveator is a minor and her mother, Vanessa Ash, purports to be her litigation guardian. Neither the written consent of Vanessa Ash nor a solicitor’s certificate in respect of the appointment of a litigation guardian have been filed and served in accordance with r 15.03(6) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), however, the matter proceeded on the basis that this requirement had been met.
On 28 August 2018, the caveator, Annaliese Ash-Grimm, filed particulars of her objection to the plaintiff’s application for a grant of representation in the estate of the deceased and subsequently filed two affidavits in support sworn by Vanessa Ash on 3 September and 3 October 2018 respectively.
By summons filed 5 September 2018, the caveator sought directions as to the future conduct of the proceeding.
On 12 October 2018, counsel for caveator sought further time to file submissions in respect of her grounds of objection to the plaintiff’s application and the summons was adjourned to 2 November 2018.
On 19 October 2018, the caveator filed written submissions dated 16 October 2018. On 26 October 2018, the plaintiff provided detailed written submissions, including orders sought as to costs, and a document outlining the plaintiff’s objections to parts of the affidavits of Vanessa Ash. These documents were subsequently filed on 2 November 2018. On 31 October 2018, the caveator filed submissions in reply as to costs.
On the return date of 2 November 2018, the caveator withdrew her opposition to the plaintiff’s application for letters of administration with the will annexed and sought orders as to costs. The caveator sought that ‘the parties’ costs, assessed on the standard basis, be paid from the estate of the deceased.
Caveator’s submissions
The caveator’s submissions proceeded on the basis that the caveator sought directions from the Court on two issues:
(a) whether the plaintiff should be appointed as the administrator of the estate of the deceased or whether an independent administrator should be appointed; and
(b) a contingent issue of how the Court should deal with the administration of the residuary estate trust established by the deceased’s will for the benefit of the caveator and her brother, who are both minors, in circumstances where the two persons named in the will as the trustees of that trust both renounced as trustees.
The caveator submits that the second issue, which was not raised for determination by the plaintiff, was a proper and necessary issue for the caveator to bring to the Court’s attention and it was necessary and expedient to have the Court deal with the second issue.
The caveator submits that at the hearing on 12 October 2018, the Court indicated that an appropriate mechanism for dealing with the second issue would be to pay the funds in the residuary estate trust into Funds in Court and be invested for the benefit of the minors. The caveator noted that the Court did not make an order to that effect but the Court is respectfully requested by the caveator to make such an order.
The caveator submits that should the Court appoint the plaintiff as the administrator of the estate of the deceased and should the Court order that the funds in the residuary estate trust be paid into Funds in Court, then both parties may be seen as successful and their costs should be paid out of the estate on the standard basis.
The caveator referred to the Court’s power to determine by whom and to what extent costs are to be paid pursuant to s 24(1) of the Supreme Court Act 1986 and to the Court’s discretion regarding costs as being absolute, unconfined and or unfettered, although it must be exercised judicially, referring to Latoudis v Casey (1990) 170 CLR 534, 537, cited with approval in Oshlack v Richmond River Council (1998)193 CLR 72, 86.
The caveator submitted that this is a case where the settled practice, sometimes called a general rule, should be followed and that in the absence of good reason to the contrary a successful litigant should receive his or her costs, referring to Ritter v Godfrey [1920] 2KB 47, 52; Donald Campbell and Co v Pollack [1927] AC 732, 809; and Milne v Attorney General (Tas) (1956) 95 CLR 460, 477. The reason given for this is that the caveator, and only the caveator, has been instrumental in obtaining the Court’s assistance in resolving the second issue and her costs on the standard basis should come from the estate of the deceased.
Consideration
The caveator is not a party to the proceeding. Although she lodged a caveat, she did not proceed with the application to challenge the plaintiff’s application for a grant of letters of administration with the will annexed and has never been added as a defendant to the proceeding.
The first issue identified by the caveator involved the determination of the caveator’s grounds of objection and her particulars in support of the grounds. Had the caveator proceeded with her application, her grounds of objection would have been struck out and her caveat dismissed on the grounds that it was misconceived and without a proper basis. It is unnecessary to set out the reasons for these conclusions in the circumstances where she did not proceed with the application. Where a caveator withdraws a caveat or does not proceed with the application, the caveator should bear the costs of the application. In the circumstances where the application was without a proper basis and wasted the time of the Court and the plaintiff, the costs should be assessed on an indemnity basis.
The discretionary power of the Court as to costs includes the power to make an order for costs against a person who is not a party to the action. Relevantly, a litigation guardian is not a party to a proceeding.[1] A personal costs order against a litigation guardian will not be made lightly by the Court. The general rule is that a litigation guardian will not be ordered to pay personally the costs incurred by the person under disability, except in the case of unreasonable behaviour or misconduct on the part of the litigation guardian.[2]
[1] Dyke v Stephens (1885) 30 Ch D 189; Pink v Sharwood Ltd [1913] 2 Ch 286.
[2]Morgan v Morgan (1865) 12 LT 199; Australian & New Zealand Banking Group Limited v Dzienciol [2001] WASC 305 (9 November 2001) [17]. See also Anthony v Vaclav (No 2) [2009] VSC 626 (24 December 2009) [8].
The importance of protecting a litigation guardian from any personal costs liability is reinforced by r 15.02(4) to Order 15 of the Supreme Court (General Civil Procedure) Rules 2015 that provides:
Unless for special reason the Court otherwise orders, the litigation guardian of a person under disability is not personally liable for costs awarded against the person.[3]
[3]Supreme Court (General Civil Procedure) Rules 2015, r 15.02(4).
Vanessa Ash’s overall conduct as Annaliese Ash-Grimm’s litigation guardian has caused delay in application for a grant of letters of administration and incurred unnecessary costs. The affidavits in support sworn by Vanessa Ash primarily contain irrelevant facts about her interpersonal conflict with the plaintiff and do not provide support for the grounds of objection.
The second issue identified by the caveator was described in the caveator’s written submissions dated 16 October 2018 as ‘a contingent issue’ and was dealt with in one short paragraph by submitting that the issue ‘may be avoided by the relevant trust funds being paid into Court by a neutral administrator and being administered by the Senior Master.’ Otherwise, these submissions comprising 63 paragraphs dealt with other matters. While an appropriate mechanism for dealing with the second issue was raised during the directions hearing, including payment into Funds in Court, the matter was not determined and it would be inappropriate to make any such order where the grant of representation has not yet been made. It is inaccurate for the caveator to suggest that she was successful on the second issue.
Conclusion
The caveator has been unsuccessful on both issues and the costs should follow the event.
One further issue is that the caveator has failed to withdraw her caveat. The plaintiff’s application for letters of administration with the will annexed cannot proceed until the estate of the deceased is no longer encumbered by a caveat. Accordingly, the Court will order that the caveat be struck out.
The Court orders that:
(a) The litigation guardian, Vanessa Maria Ash, personally pay the costs of the plaintiff of and incidental to the caveat application on an indemnity basis without indemnity from the estate of the deceased;
(b) The costs of the plaintiff of and incidental to the proceeding otherwise be paid or retained out of the estate of the deceased;
(c) The caveator bear her own costs of and incidental to the caveat application without indemnity from the estate of the deceased; and
(d) Caveat number S CAV 2018 00123 filed by the caveator on 13 July 2018 be struck out.
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