Re Bovill; Bovill v Bovill

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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

  1. 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.

  1. 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…

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Details
Case
[2017] VSC 697
Decision Date

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.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Ratio Decidendi

Legal Principle Established

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