JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2006
DATE OF JUDGMENT:	30 June 2006
CASE MAY BE CITED AS:	Re Bull, deceased (No. 2)
MEDIUM NEUTRAL CITATION:	[2006] VSC 226

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Procedure – family provision – costs of unsuccessful plaintiff – whether to be paid by the defendant – costs of successful defendant – whether to be paid by plaintiff.

Section 97(6) Administration and Probate Act 1958

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr RR Boaden	Lawson Hughes Peter Walsh
For the Defendant	Mr RB Phillips	Morley Naughton Pearn & Cook

HIS HONOUR:

On the 7 April 2006, I gave judgment in this proceeding.[1] The plaintiff was unsuccessful in his claim for further provision from the estate of the late David Rodney Bull, and there remains the question of costs. On 26 May 2006, I heard oral arguments supported by helpful written submissions. Counsel for the plaintiff submitted that, although his client was not successful, he should have his costs from the estate. On behalf of the defendant executrix, it was put that costs should follow the event and that the costs of the estate should be paid by the plaintiff.
[1][2006] VSC 113.

These applications were argued against the statutory background established by recent amendments to s. 97 of the Administration and Probate Act[2]. Sub-sections (6) and (7) are in the following terms:

“97. Contents of order
(6)Subject to sub-section (7), the Court may make any order as to the costs of an application under section 91 that is, in the Court's opinion, just.
(7)If the Court is satisfied that an application for an order under section 91 has been made frivolously, vexatiously or with no reasonable prospect of success, the Court may order the costs of the application to be made against the applicant.”

[2]Inserted by the Wills Act 1997.

Section 24(1) of the Supreme Court Act 1986 confers on the Court a general discretion as to the costs “of all matters in the Court, including the administration of estates and trusts”. The implementation of this discretionary power has been circumscribed in the cases so that there is a strong disposition in ordinary civil litigation to award costs in favour of the successful party – costs follow the event – and that these costs be assessed on a party and party basis. The statutory power is, however, expressed to be conferred “unless otherwise specifically provided by this or any other Act or by the Rules”. Part IV of the Administration and ProbateAct from its earliest inception in 1906[3]…

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 Bull (No 2)

Details

AGLC: Re Bull (No 2) [2006] VSC 226
Case: [2006] VSC 226
Decision Date: 30 June 2006

CaseChat Overview and Summary

The appeal, Re Bull (No 2), involved the plaintiff, a daughter of the deceased, and the defendant, the estate of the deceased's husband. The dispute centred on the costs incurred during the family provision proceedings under section 97 of the Administration and Probate Act 1958. The plaintiff sought an order for costs from the defendant, while the defendant sought an order for costs from the plaintiff. The case was heard in the Supreme Court of Victoria.

The court was required to determine two primary legal issues. First, whether the costs of an unsuccessful plaintiff in family provision proceedings should be paid by the defendant. Second, whether the costs of a successful defendant should be paid by the plaintiff. These questions were crucial in determining the financial burden of the proceedings and ensuring fairness between the parties involved.

In resolving these issues, the court referred to the relevant provisions of the Administration and Probate Act 1958. It considered the general principle that costs should follow the event, meaning the unsuccessful party typically bears the costs of the successful party. However, the court also recognised the equitable considerations inherent in family provision cases. Ultimately, the court decided that the costs of the unsuccessful plaintiff should not be paid by the defendant, as this would not align with the equitable considerations of the case. Conversely, the costs of the successful defendant should be paid by the plaintiff, in line with the general principle that costs follow the event.

The court ordered that the costs of the unsuccessful plaintiff should be borne by the plaintiff herself, and the costs of the successful defendant should be borne by the plaintiff. This decision ensured a fair outcome that balanced the legal principles and equitable considerations of the case.

Orders