Re Connock (No 4) - [2023] VSC 488

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S CI 2019 03554

RICHARD ANTHONY CONNOCK

(in his capacity as executor of the estate of Dr Richard Hugh Shephard Connock)

Plaintiff

BARBARA FAYE CONNOCK

Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions
DATE OF JUDGMENT:	17 August 2023
CASE MAY BE CITED AS:	Re Connock (No 4)
MEDIUM NEUTRAL CITATION:	[2023] VSC 488

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COSTS – Estate litigation – Where plaintiff unsuccessful in proprietary estoppel claim – Costs follow the event – No special circumstances warranting award of indemnity costs – Plaintiff to pay defendant’s costs on a standard basis – Supreme Court Act 1986, s 24 – Supreme Court (General Civil Procedure) Rules 2015, O 63 – Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; Northern Territory v Sangare (2019) 265 CLR 164.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr C Gunson SC

with Mr L Hogan

John Keating & Associates

For the Defendant

Mr M Tehan

Hall & Wilcox

HIS HONOUR:

On 24 July 2023, I delivered my reasons for judgment in this proceeding in which Mrs Connock was successful in defending a case brought by Mr Connock.[1] I found that there was no Asset Expectation, being the premise on which Mr Connock’s case of proprietary estoppel rested.
[1]Re Connock (No. 3) [2023] VSC 420 (the reasons for judgment). In this judgment I use the abbreviations as defined in the reasons for judgment.

Mr Connock accepts that he should pay Mrs Connock’s costs of the proceeding on a standard basis. However, Mrs Connock seeks indemnity costs on the basis of Mr Connock having refused two Calderbank offers.

The first offer was made by way of a letter from Mrs Connock’s solicitors to Mr Connock’s solicitors dated 4 March 2022 (the first offer) in which Mrs Connock relevantly offered:

(a) to pay $150,000 to the Connock children;

(b) that this proceeding and proceeding S ECI 2018 01646 (the Part IV proceeding)[2] be discontinued with no order as to costs; and

(c) that each party bear their own costs of this proceeding and the Part IV proceeding.

[2]The Part IV proceeding is brought by two of the Connock children: Linda Sutton and Patricia Connock.

The second offer was made by way of a letter from Mrs Connock’s solicitors to Mr Connock’s solicitors dated 28 June 2022 (the second offer) and relevantly offered:

(a) for $200,000 from any sale or transfer of Kooroui Court to be paid to the Connock children at the time of settlement of a sale or transfer (with a caveat to be lodged to support the sum);

(b) to pay $150,000 to the Connock children;

(c) that this proceeding and the Part IV proceeding be discontinued with no order as to costs; and

(d) that each party bear their own costs of this proceeding 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 Connock (No 4)

Details

AGLC: Re Connock (No 4) [2023] VSC 488
Case: [2023] VSC 488
Decision Date: 17 August 2023

CaseChat Overview and Summary

The case of Re Connock (No 4) involved a dispute between the plaintiff and the defendant regarding a claim of proprietary estoppel. The case was heard in the Supreme Court of Victoria. The plaintiff sought to establish an interest in a property based on a promise made by the defendant, which the defendant denied. The defendant argued that the plaintiff had not met the requirements for a successful proprietary estoppel claim.

The central legal issue before the court was whether the plaintiff had established a proprietary estoppel claim against the defendant. The court also had to consider whether any special circumstances existed that would warrant the award of indemnity costs to the plaintiff, or whether the usual rule that costs follow the event would apply. The court referred to relevant case law, including Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) and Northern Territory v Sangare, to determine the appropriate costs order.

The court found that the plaintiff was unsuccessful in establishing a proprietary estoppel claim. The court concluded that there were no special circumstances present that would warrant the award of indemnity costs to the plaintiff. Instead, the court held that the usual rule that costs follow the event applied, meaning that the plaintiff was to bear the defendant’s costs on a standard basis. This decision was in line with the relevant statutory provisions and case law.

The court ordered that the plaintiff pay the defendant’s costs of the proceedings on a standard basis, in accordance with the Supreme Court Act 1986 and the Supreme Court (General Civil Procedure) Rules 2015. The court’s decision was based on the finding that the plaintiff was unsuccessful in their proprietary estoppel claim and that there were no special circumstances warranting an indemnity costs order.

Orders