Re Cassar (No 2) - [2022] VSC 398

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2012 00877

IN THE MATTER of the Estate of FRANCIS MICHAEL CASSAR, deceased

MICHAEL ANTHONY CASSAR	Plaintiff
v
SANDRA ANNE CASSAR	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2022 and written submissions filed on 20, 23, 27 and 30 May 2022
DATE OF JUDGMENT:	15 July 2022
CASE MAY BE CITED AS:	Re Cassar (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 398

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PRACTICE AND PROCEDURE – Costs – Application for indemnity costs – Special circumstances that justify award of indemnity costs – Plaintiff ought to have apprehended his defence unlikely to succeed – Plaintiff instrumental in forgery of the will of the deceased – Plaintiff sought to advance own self-interest as sole beneficiary of the deceased's estate – Plaintiff acted dishonestly – Indemnity costs awarded – Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189; Rees v Rees (No 2) [2016] VSC 579.

JUDGMENTS AND ORDERS – Consequential orders following judgment – Declaratory relief appropriate in circumstances of conspiracy to forge a will – Whether appropriate to make vesting order of real property and company shares in new legal personal representative – Defendant sought declaration transfers of land and transfer of shares executed by plaintiff void as procured by fraud – Plaintiff not given opportunity to raise defences – Inappropriate to grant relief sought – s 31 of the Administration and Probate Act 1958 – s 44(1) of the Transfer of Land Act 1958 – Civil Procedure Act 2010 (Vic) – Phillips v Walsh [1990] 20 NSWLR 206; Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 3) [2015] WASC 272.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N J Baum	KHQ Lawyers
For the Defendant	Mr J Rizzi	Watson Hughes Lawyers

HIS HONOUR:

In my reasons for judgment delivered in this proceeding on 18 March 2022, [1] I found that the deceased, Frank Cassar, did not know and approve the contents of a will dated 29 September 2009 purportedly made by him for which probate was granted to his son, Michael Cassar, on 3 February 2012. I also found that the will was a forgery produced after Frank’s death. I made an order revoking the grant of probate made to Michael in respect of the will. I also ordered that, subject to the requirements of the Registrar of Probates, administration upon the intestacy of Frank be granted to Sandra Cassar.[2]
[1]Re Cassar [2022] VSC 126 (‘Re Cassar (No 1)’). In these further reasons for judgment I use the abbreviations as defined in my earlier reasons for judgment. In order to avoid confusion and without intending any disrespect, in these reasons for judgment I have continued to generally refer to parties and witnesses by their first names.
[2]In proceeding S PRB 2019 10845.

These reasons for judgment concern the issue of costs and the…

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 Cassar (No 2)

Details

AGLC: Re Cassar (No 2) [2022] VSC 398
Case: [2022] VSC 398
Decision Date: 15 July 2022

CaseChat Overview and Summary

This appeal arose from a dispute concerning the estate of a deceased person, where the plaintiff was the sole beneficiary under the will. The defendant sought to have the will declared invalid due to forgery and sought indemnity costs and other relief. The case was heard by the Supreme Court of Victoria, which considered the plaintiff's conduct and the appropriateness of the requested relief.

The court had to determine whether the plaintiff's conduct warranted the award of indemnity costs, given the plaintiff's role in forging the will and acting dishonestly. The court also had to consider whether the requested consequential orders, including a vesting order of real property and company shares, were appropriate given the circumstances. The court referred to previous cases such as Ugly Tribe Co Pty Ltd v Sikola and Rees v Rees to assess the plaintiff's conduct and the principles governing indemnity costs.

The court found that the plaintiff's dishonest conduct, including the forgery of the will, justified the award of indemnity costs. The court held that the plaintiff ought to have foreseen that their defence was unlikely to succeed and acted to advance their own self-interest. The court also determined that the requested consequential orders were not appropriate, as the plaintiff was not given an opportunity to raise defences to the allegations of fraud. The court noted that the relief sought by the defendant was akin to making a final determination of the merits of the case, which was not appropriate in the circumstances.

The court made an order that the plaintiff pay the defendant's costs on an indemnity basis, reflecting the plaintiff's dishonest conduct and the likelihood of their defence failing. The court declined to make any consequential orders, including a vesting order of the real property and company shares, as the plaintiff had not been given an opportunity to raise defences to the allegations of fraud. The court's decision was based on the principles set out in previous cases and relevant statutory provisions.

Orders