Re Cambronero; Cambronero v Palma - [2019] VSC 838

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S ECI 2018 00837

IN THE MATTER of the will and estate of RAIMUNDO GOMEZ CAMBRONERO, deceased

- and -

IN THE MATTER of an application pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015, r 6.03 of the Supreme Court (Administration and Probate) Rules 2004, and s 34 of the Administration and Probate Act 1958 and s 48 of the Trustee Act 1958

IVAN GOMEZ CAMBRONERO	Plaintiff
- and -
ELIZABETH PALMA (as executor of the will of RAIMUNDO GOMEZ CAMBRONERO, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	19 December 2019
CASE MAY BE CITED AS:	Re Cambronero; Cambronero v Palma
MEDIUM NEUTRAL CITATION:	[2019] VSC 838

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PRACTICE AND PROCEDURE — Summary dismissal of proceeding — Where parties signed terms of settlement — Terms provided for the alternative relief sought by plaintiff — Where administration of estate substantially complete — Civil Procedure Act 2010 (Vic) s 7.

COSTS — Plaintiff seeks personal costs order against executor — Defendant seeks costs against plaintiff — Where proceeding not adjudicated on the merits — Whether conduct of the parties was reasonable — Asta Developments (Aust) Pty Ltd v Amasya Enterprises Pty Ltd [2016] VSCA 186; Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Black	Willerby’s Solicitors
For the Defendant	Mr NJ McOmish	BSA Legal

HER HONOUR:

Introduction

Raimundo Gomez Cambronero died on 12 September 2016. He was survived by the plaintiff and the defendant, who are his adult children. The plaintiff and his children live in Germany. The defendant lives in Australia.

Probate of the deceased’s will dated 6 November 2012 (‘the Australian will’) was granted to the defendant on 18 November 2016.

The Australian will bequeathed 50 per cent of his estate to the defendant, 25 per cent to the plaintiff and 25 per cent to be held on trust for the plaintiff’s ‘natural or IVF children’. The net value of the deceased’s estate was approximately $643,715. The greater part of the estate has been distributed, with the share for the plaintiff’s children held in trust.

The deceased also made an informal Spanish will dated 9 May 2016 (‘the Spanish will’). The principal difference between the Australian will and the Spanish will is that, pursuant to the Spanish will, 50 per cent of the deceased’s estate was bequeathed to the plaintiff, rather than being split between him and his children. Until recently, the parties proceeded on the basis that the Spanish will governed the deceased’s assets in Europe and the Australian will governed his assets in Australia.

Background

Shortly after the deceased’s death, the plaintiff made it known to the defendant that he wished to be appointed as trustee of the testamentary trust created by the Australian…

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: [2019] VSC 838
Decision Date: 19 December 2019

CaseChat Overview and Summary

The case of Re Cambronero; Cambronero v Palma involved the executor of an estate, Palma, and the plaintiff, Cambronero. The dispute arose from a settlement agreement that had been reached, which included terms for the alternative relief sought by the plaintiff. However, the administration of the estate was substantially complete, leading to a question about the appropriateness of the proceeding's continuation under section 7 of the Civil Procedure Act 2010 (Vic). The court had to decide whether the proceeding should be summarily dismissed due to the settlement agreement and the completion of estate administration.

The court examined the legal issues concerning the summary dismissal of the proceeding, particularly in light of the signed settlement agreement and the substantial completion of estate administration. The primary concern was whether the proceeding should proceed despite the settlement and the administrative closure of the estate. The court also had to determine the appropriate costs order, as both parties sought personal costs against each other. The key consideration was whether the conduct of the parties was reasonable, given that the proceeding was not adjudicated on its merits.

The court concluded that the proceeding should be summarily dismissed due to the signed settlement agreement, which provided for the alternative relief sought by the plaintiff, and the fact that the administration of the estate was substantially complete. The court emphasised the importance of considering the reasonable conduct of the parties in awarding costs, referencing Asta Developments (Aust) Pty Ltd v Amasya Enterprises Pty Ltd and Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin. Ultimately, the court found that neither party's conduct warranted a costs order against the other, and thus no personal costs order was made.

The court ordered that the proceeding be summarily dismissed and that no costs be awarded to either party.

Orders