Re Bovill; Bovill v Bovill - [2017] VSC 697

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2016 03817

IN THE MATTER of the will and estate of SHEILA ROSSLYN BOVILL, deceased

-and-

IN THE MATTER of an application under Order 54 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)

-and-

IN THE MATTER of an application under s 198F of the Corporations Act 2001 (Cth)

BETWEEN:

IAN DOUGLAS BOVILL (in his personal capacity and in his capacity as an executor of the estate of Sheila Rosslyn Bovill, deceased)	Plaintiff
v
CHRISOPHER SCOTT BOVILL (in his capacity as an executor of the estate of Sheila Rosslyn Bovill, deceased) and others according to the attached Schedule	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	20 November 2017
CASE MAY BE CITED AS:	Re Bovill; Bovill v Bovill
MEDIUM NEUTRAL CITATION:	[2017] VSC 697

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COSTS — Where discovery proceeding not adjudicated on the merits — Where plaintiff sought costs against the defendants — Where defendants sought costs from the plaintiff —Whether conduct of the parties was reasonable — No point of principle.

PRACTICE AND PROCEDURE — Where plaintiff sought the proceeding to remain on foot — Civil Procedure Act 2010 — Wharf Properties Ltd v Eric Cumine Associates (No 2) (1991) 51 BLR 1.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A J Verspaandonk	HWL Ebsworth Lawyers
For the Defendants	Mr S Newton	Bernie O’Sullivan Lawyers

SCHEDULE OF PARTIES

IAN DOUGLAS BOVILL (in his personal capacity and as co-executor of the Estate of the Deceased)	Plaintiff
-and-
CHRISTOPHER SCOTT BOVILL (as co-executor of the Estate of the Deceased)	First Defendant
-and-
ROSS WILSON BOVILL (as co-executor of the Estate of the Deceased)	Second Defendant
-and-
ROSWAL NOMINEES PTY LTD (ACN 005 077 805) (as trustee for the Bovill Family Trust)	Third Defendant
-and-
BOVILL PTY LTD (ACN 118 562 904)	Fourth Defendant

HER HONOUR:

Introduction

Sheila Rosslyn Bovill died on 21 November 2010. Her four children, the plaintiff, the first defendant, the second defendant and Heather Bovill survived her. The third defendant is the trustee of the Bovill Family Trust. The current directors of the third defendant are the second defendant and Heather Bovill. The plaintiff and the first and second defendants are the current guardians and appointors of the Bovill Family Trust. The fourth defendant, Bovill Pty Ltd, is the family company and a corporate beneficiary of the family trust. The first and second defendants are the current directors of the fourth defendant.

By her will, the deceased left her residuary estate in equal shares to her four children and established testamentary trusts for each of her children. By her codicil, after certain specific bequests, the deceased devised property at Tura Beach in New South Wales to the plaintiff as part of his share of her estate. The deceased valued this share at $600,000 and this amount was to be deducted from the one quarter…

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.

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Details

Case: [2017] VSC 697
Decision Date: 20 November 2017

CaseChat Overview and Summary

In the matter of Re Bovill and the proceeding Bovill v Bovill, the court was tasked with determining the issue of costs between the parties involved in a discovery proceeding that was not adjudicated on its merits. The plaintiff sought costs against the defendants, while the defendants, in turn, sought costs from the plaintiff. The case was heard in the court, which had to assess whether the conduct of both parties was reasonable and whether there were any points of principle to consider.

The primary legal issue before the court was whether the conduct of the parties during the discovery proceeding warranted the awarding of costs. The court had to examine the actions of both the plaintiff and the defendants to determine if either party acted unreasonably. Additionally, the court considered whether there were any points of principle that would warrant the imposition of costs.

The court ruled that no point of principle existed to justify the imposition of costs. It found that the conduct of both parties was reasonable, and therefore, neither party was entitled to costs. The court relied on the principles established in Wharf Properties Ltd v Eric Cumine Associates (No 2) (1991) 51 BLR 1, which provided guidance on the assessment of costs in such circumstances. Consequently, the plaintiff's application for costs against the defendants, as well as the defendants' application for costs against the plaintiff, was dismissed.

The final orders of the court reflected its decision. The plaintiff's application for costs against the defendants was dismissed, as was the defendants' application for costs against the plaintiff. The court made no order as to costs, reflecting its finding that no unreasonable conduct was demonstrated by either party and that there were no points of principle to warrant the imposition of costs.

Orders