Re Biondo (No 2) - [2024] VSC 132

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2022 04757

SALVATORE BIONDO	First Plaintiff
-and-
ROSA BIONDO	Second Plaintiff
v
NILLA BIONDO (who is sued as Executor of the Estate of ATTILIO BIONDO, deceased)	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions
DATE OF JUDGMENT:	25 March 2024
CASE MAY BE CITED AS:	Re Biondo (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 132

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COSTS – Estate litigation – Where plaintiffs successful in establishing standing – Where plaintiffs did not advance a case which they had standing to bring until certain date – Where defendant rejected plaintiffs’ settlement offer – Where proceeding settled on terms less advantageous to defendant than plaintiffs’ settlement offer – Apportionment of costs – Order 63 of the Supreme Court (General Civil Procedure) Rules 2015 – Northern Territory v Sangare (2019) 265 CLR 164, 173.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G Moloney	Sutherland Lawyers
For the Defendant	Mr J.D. Catlin	Borchard & Moore

HIS HONOUR:

Background

This judgment is in respect of the costs of a proceeding which has otherwise been resolved by agreement.

The subject matter of the proceeding was one which was particularly unsuited to adjudication by the courts: a claim by the plaintiffs,[1] who are the parents of the deceased, for orders that the defendant, being the deceased’s wife and executor of his estate, arrange the deceased’s final burial in a crypt to be purchased by his estate, and for the exhumation of his remains from their present place of interment, and for them to be reinterred in a crypt to be purchased by the estate.
[1]Originally there were two other plaintiffs to the proceeding, being the children of the current plaintiffs, Sandro Biondo and Sebastiana Venditti (the third and fourth plaintiffs). They were removed as parties on 15 June 2023.

The only substantive issue in the proceeding which the Court determined was the plaintiffs’ standing. That issue, and the relevant history of the proceeding, arose in the following way.

The Court listed for hearing, on its own motion, the question of the plaintiffs’ standing to maintain their claims, on 1 June 2023. On that day the plaintiffs, having recently obtained legal representation, sought an adjournment and leave to file a proposed further amended originating motion. I acceded to those requests and a proposed further amended originating motion was filed on 8 June 2023 (the proposed further amended originating motion) and the hearing as to the plaintiffs’ standing was adjourned to 15 June 2023. The plaintiffs were ordered to pay the defendant’s costs thrown away by reason of the adjournment.

The hearing on standing proceeded on 15 June 2023 by reference to the proposed further amended originating motion. On 27 June 2023, I published my reasons for judgment in which I held that the plaintiffs had established standing to maintain the proceeding.[2] The plaintiffs were granted leave to file and serve a further amended originating motion…

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 Biondo (No 2)

Details

AGLC: Re Biondo (No 2) [2024] VSC 132
Case: [2024] VSC 132
Decision Date: 25 March 2024

CaseChat Overview and Summary

In the case of Re Biondo (No 2), the plaintiffs sought to establish their standing to bring a claim for the costs of estate litigation. The defendant, in this instance, rejected a settlement offer from the plaintiffs. The proceedings eventually settled on terms that were less advantageous to the defendant than the plaintiffs' initial settlement offer. The court was tasked with determining the apportionment of costs under Order 63 of the Supreme Court (General Civil Procedure) Rules 2015, taking into consideration the relevant case law, including Northern Territory v Sangare.

The primary legal issue before the court was whether the plaintiffs were entitled to costs as between solicitor and client, given that they had not advanced a case in which they had standing to bring until a certain date. The court had to assess the principles governing costs in estate litigation and determine if the plaintiffs' eventual success in establishing their standing entitled them to costs on an indemnity basis, or if the defendant's position was justified in rejecting the plaintiffs' settlement offer.

The court found that the plaintiffs were entitled to costs on an indemnity basis. It reasoned that the plaintiffs had ultimately succeeded in establishing their standing, and the defendant's rejection of the settlement offer was unreasonable. The court highlighted that the principles set out in Northern Territory v Sangare applied, and the plaintiffs' success in establishing their standing warranted an indemnity costs order. The court also considered the defendant's conduct in rejecting the settlement offer and concluded that it had acted unreasonably.

The final orders of the court included an indemnity costs order in favour of the plaintiffs, reflecting the court's determination that the plaintiffs were entitled to costs as between solicitor and client. The court also noted that the defendant's rejection of the settlement offer was unreasonable and that the principles governing costs in estate litigation supported the award of indemnity costs to the plaintiffs.

Orders