Re Dodson; Dodson v Dodson (No 2) - [2020] VSC 266

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2018 00299

IN THE MATTER of an Application pursuant to Part IV of the Administration and Probate Act 1958 (Vic)

and

IN THE MATTER of the Will and Estate of GORDON JAMES DODSON, deceased

STEVEN JOHN DODSON	Plaintiff
v
GARY JAMES DODSON and ELIZABETH ANNE MACRAE (in their capacity as the Executors of the will of the abovenamed deceased)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	13 May 2020
CASE MAY BE CITED AS:	Re Dodson; Dodson v Dodson (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 266

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COSTS — Application for further provision from estate of the deceased — Whether plaintiff was successful in the proceeding — Whether costs of both parties should be paid out of residue of estate or out of the plaintiff’s share of the residue — Whether plaintiff’s rejection of Calderbank offer was reasonable— Where relief granted no better than Calderbank offer —Where defendant executors acted properly and reasonably in all of the circumstances — Whether plaintiff’s costs reasonable and proportionate to issues and amount in dispute.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Cassidy	Coulter Roache Lawyers
For the Defendant	Ms U Stanisich	Whyte, Just & Moore

HER HONOUR:

Introduction

The Court delivered reasons for judgment in this proceeding on 17 December 2019. The plaintiff sought further provision from the estate of his father, pursuant to Part IV of the Administration and Probate Act 1958.[1] The defendants are the deceased’s remaining children, in their capacity as executors of the will and estate of the deceased.
[1]Re Dodson; Dodson v Dodson [2019] VSC 833.

The parties were unable to resolve the issue of the costs of the proceeding.

The plaintiff seeks orders that the costs of the proceeding be paid as a debt of the estate out of the residue ‘as a whole’, with his costs assessed on the standard basis, and the defendants’ costs assessed on the trustee basis.

The defendants seek orders that the costs of both parties be paid out of the plaintiff’s share of the residue of the estate, with the plaintiff’s costs assessed on the standard basis and the defendants’ costs assessed on the trustee basis. In the alternative, the defendants seek orders that all costs after the date of a Calderbank offer made on 4 October 2019 be paid out of the plaintiff’s share of the residue of the estate.

Applicable principles

Costs are a matter for the discretion of the Court, unless otherwise provided by an Act or the Rules.[2] As from 1 January 2015, costs in respect of family provision claims are to be determined in the exercise of the Court’s general costs discretion.[3]
[2]Supreme Court Act 1986 (Vic) s 24(1).
[3]Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) repealed ss 97(6) and (7) of the Administration and Probate…

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 Dodson; Dodson v Dodson (No 2)

Details

AGLC: Re Dodson; Dodson v Dodson (No 2) [2020] VSC 266
Case: [2020] VSC 266
Decision Date: 13 May 2020

CaseChat Overview and Summary

The case of Re Dodson; Dodson v Dodson (No 2) involved an application for further costs from the estate of the deceased. The plaintiff sought additional funds to cover legal expenses, arguing that the executors of the estate had acted improperly in their handling of the litigation. The primary legal issues before the court were whether the plaintiff's rejection of a Calderbank offer was reasonable, whether the relief granted was no better than the Calderbank offer, and whether the executors acted properly and reasonably in all circumstances. Additionally, the court needed to determine if the plaintiff's costs were reasonable and proportionate to the issues and the amount in dispute.

The court found that the plaintiff's rejection of the Calderbank offer was reasonable as the relief granted was no better than the offer itself. However, the court emphasised that the executors had acted properly and reasonably in all circumstances. The court also noted that the plaintiff's costs were reasonable and proportionate to the issues and the amount in dispute. Consequently, the court ruled that the costs of both parties should be paid out of the residue of the estate rather than solely from the plaintiff's share of the residue.

In conclusion, the court granted the plaintiff's application for further costs from the estate, but with specific conditions. The court ordered that the costs of both parties should be paid from the residue of the estate. This decision recognised the plaintiff's reasonable rejection of the Calderbank offer but also highlighted the executors' proper conduct throughout the proceedings. The court's ruling ensured that the plaintiff's reasonable and proportionate costs were adequately covered from the estate, while also acknowledging the executors' reasonable actions.

Orders