Re Caruso (No 2) - [2022] VSC 318

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2021 04625

IN THE MATTER of an application under Order 54.02 of the Supreme Court (General Civil Procedure) Rules 2015
IN THE MATTER of the intestate estate of MARIO CARUSO, deceased
NATALIE TALIA (in her capacity as administrator ad litem of the estate of MARIO CARUSO deceased, pursuant to order of the Honourable Justice McMillan made 28/07/2021)	Plaintiff
v
CATHERINE ANNE WHITTY & ORS (according to the attached schedule)	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2022 (Written submissions received on 26, 27 and 30 May 2022)
DATE OF RULING:	10 June 2022
CASE MAY BE CITED AS:	Re Caruso (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 318 (First Revision 14 June 2022)

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COSTS – Intestacy – Judicial advice – Whether costs recoverable out of the estate – Whether costs should be taxed on the standard basis or indemnity basis – Position of effective contradictor – Where the amount of the taxed costs may exceed the value of the estate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Pascoe	Hicks Oakley Chessel Williams Pty Ltd
For the First Defendant	Mr S Pitt	Mills Oakley
For the Second to Fourth Defendants	Mr R Wells	Mazzeo Lawyers

HIS HONOUR:

A. Background

Catherine Whitty, the first defendant, and her husband, Mario Caruso, were registered as joint proprietors of a property in Fitzroy that was their matrimonial home (the ‘Fitzroy property’). Mr Caruso died intestate owing money to his siblings, the second to fourth defendants. Ms Whitty is the next of kin.

Ms Whitty applied for a general grant of letters of administration of Mr Caruso’s estate. It became apparent that Mr Caruso’s siblings, the second to fourth defendants, contended that Ms Whitty and Mr Caruso held the Fitzroy property in equity as tenants in common, rather than as joint tenants. If this was right, then there was an increased prospect that Mr Caruso’s estate would have sufficient funds to meet its liability to them. In view of the conflicts of interest, the Court appointed the plaintiff an administrator ad litem of Mr Caruso’s estate for the purpose of commencing this proceeding on behalf of the estate in order to obtain an answer from the Court essentially as to whether or not Ms Whitty and Mr Caruso held the Fitzroy property as joint tenants or as tenants in common. I determined that the Fitzroy property was held by Ms Whitty and Mr Caruso as tenants in common.[1]
[1]Re Caruso [2022] VSC 242.

Both the plaintiff and Mr Caruso’s siblings were separately represented, and both presented detailed argument in support of the same conclusion. The arguments that they put overlapped and there was some duplication. Ms Whitty was in a sense in the position of a ‘contradictor’, in that she was contradicting the position that was being put by both the administrator ad litem and…

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 Caruso (No 2)

Details

AGLC: Re Caruso (No 2) [2022] VSC 318
Case: [2022] VSC 318
Decision Date: 10 June 2022

CaseChat Overview and Summary

The case of Re Caruso (No 2) involved the issue of costs in an intestate matter, where the deceased's estate was being administered. The matter was heard in the Supreme Court of Victoria. The central issue was whether the costs incurred by the parties involved in the administration of the estate could be recovered from the estate itself and, if so, whether these costs should be taxed on a standard or indemnity basis.

The court needed to determine the appropriate method for taxing the costs in light of the fact that one party had acted as an effective contradictor, a status that may entitle them to indemnity costs. Additionally, the court had to consider the potential scenario where the taxed costs might exceed the value of the estate, which could create a conflict in cost recovery.

The court ruled that the costs incurred by the parties should be recoverable from the estate, as the deceased had not left a will and therefore, no specific instructions regarding the costs were provided. The court also concluded that the party acting as an effective contradictor was entitled to indemnity costs. The court emphasised the importance of judicial advice in such cases, which guided the court in determining the appropriate cost recovery method. The final orders specified that the costs would be taxed on an indemnity basis, considering the effective contradictor status of one party, and any excess costs would not be recovered from the estate.

Orders