Re Connock (No 2) - [2021] VSC 122

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 04583

BARBARA FAYE CONNOCK	Plaintiff
v
RICHARD ANTHONY CONNOCK (in his capacity as executor of the estate of Dr Richard Hugh Shephard Connock)	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2021
DATE OF RULING:	17 March 2021
CASE MAY BE CITED AS:	Re Connock (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 122

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COSTS – Estate litigation – Application for the removal of defendant executor – Application unsuccessful – Where the substantive issue in dispute was whether the Court should exercise discretion to remove the executor – Where executor successfully defended the application – Where there is no good reason to depart from usual order as to costs – Costs follow the event – Supreme Court Act 1986, s 24 – Supreme Court (General Civil Procedure) Rules 2015, O 63 – Northern Territory v Sangare (2019) 265 CLR 164, followed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M D Tehan	Hall & Wilcox
For the Defendant	C Gunson SC with L Hogan	John Keating & Associates

HIS HONOUR:

I delivered judgment in this proceeding on 18 February 2021, dismissing an application brought by the plaintiff, Faye, to remove the defendant, Richard, as executor of the estate of Dr Richard Hugh Shephard Connock.[1] This ruling concerns the question of the costs of the proceeding. In these reasons, I use the abbreviations as defined in my reasons for judgment dated 18 February 2021.
[1]Re Connock [2021] VSC 64.

Background

Faye’s unsuccessful application centred on Richard’s position of conflict. As executor, Richard has a duty to give effect to the terms of the will of the deceased. However, Richard, in his capacity as executor, has brought an estoppel proceeding against Faye, seeking a declaration that Faye holds certain proprietary interests bequeathed by the will on trust for her own benefit and maintenance during the course of her lifetime, but, on her death, for the benefit equally of the deceased’s children. These declarations would be contrary to the terms of the will, which makes no provision for any property or assets to revert to the deceased’s children after Faye’s death. Richard stands to personally benefit from these declarations.

I held that, although Richard is in a position of conflict, the welfare of the beneficiaries of the estate did not warrant his removal as executor.

The parties’ positions on costs

Faye submits that the parties should bear their own costs of the proceeding. In the event that the Court is not minded to make such an order, Faye submits that she should pay 50% of Richard’s costs on a standard basis.

Richard submits that costs should follow the event, and Faye should pay his costs of the proceeding.

Legal principles

The Court’s jurisdiction in relation to costs is conferred by s 24(1) of the Supreme Court Act 1986. The Court’s discretion in…

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 Connock (No 2)

Details

AGLC: Re Connock (No 2) [2021] VSC 122
Case: [2021] VSC 122
Decision Date: 17 March 2021

CaseChat Overview and Summary

The case of Re Connock (No 2) involved an application in estate litigation for the removal of a defendant executor. The application was unsuccessful, with the substantive issue being whether the court should exercise its discretion to remove the executor. The executor successfully defended the application. The court held that there was no good reason to depart from the usual order as to costs, which means that costs followed the event. This decision was based on the Supreme Court Act 1986 and the Supreme Court (General Civil Procedure) Rules 2015. The court followed the decision in Northern Territory v Sangare, which was a significant case in Australian law that dealt with the same issue of costs in estate litigation.

The legal issue before the court was whether the executor should be removed and if the applicant should be awarded costs. The court considered the relevant legislation and case law to determine the appropriate outcome. The court found that the executor had acted appropriately and that there was no valid reason to remove them from their position. The court also noted that the usual order as to costs, which means that the unsuccessful party pays the costs of the successful party, should apply in this case. The court's decision was based on a careful analysis of the relevant legal principles and the facts of the case.

The court's reasoning was based on the principles of equity and fairness. The court noted that the executor had acted in good faith and had not breached any of the duties owed to the estate. The court also found that the applicant had not provided any compelling reason to remove the executor. The court further noted that the usual order as to costs should apply, as there was no exceptional circumstance that would warrant a departure from this principle. The court's decision was consistent with the relevant legislation and case law.

The final orders of the court were that the application for the removal of the executor be dismissed and that costs follow the event. The applicant was ordered to pay the executor's costs of the application. The court's decision was based on a careful analysis of the relevant legal principles and the facts of the case. The court's decision provides guidance for future cases involving similar issues in estate litigation.

Orders