Re Dodson; Dodson v Dodson (No 3) - [2020] VSC 862

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE 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:	17 December 2020
CASE MAY BE CITED AS:	Re Dodson; Dodson v Dodson (No 3)
MEDIUM NEUTRAL CITATION:	[2020] VSC 862

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COSTS – FAMILY PROVISION – Unsuccessful plaintiff ordered to pay defendants’ costs from plaintiff’s share of estate – Where plaintiff’s solicitor failed to comply with Court’s requirement to amend affidavit containing irrelevant and inadmissible material – Where affidavit of plaintiff’s wife not relied on at trial – Whether costs claimed by solicitors for affidavits are wasted – Supreme Court Act 1986 (Vic) s 24; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.23; Civil Procedure Act 2010 (Vic) ss 24, 29 – Dura (Australia) Constructions Pty Ltd v Hue Boutique Living (No 5) (2014) 48 VR 1.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Bowman & Knox
For the Defendants	Ms U Stanisich	Whyte, Just & Moore
For Coulter Roache Lawyers and Mr A Cassidy	Colin Biggers & Paisley

HER HONOUR:

Introduction

On 17 December 2019, judgment was delivered on the plaintiff’s claim for further provision from the estate of his deceased father (‘the principal judgment’).[1] On 13 May 2020, orders for the costs of the proceeding were made, save for a further issue regarding costs of the affidavits filed by the plaintiff (‘the costs judgment’).[2] The background to the remaining issue was set out in the costs judgment as follows:
[1]Re Dodson; Dodson v Dodson [2019] VSC 833 (‘Principal judgment’).
[2]Re Dodson; Dodson v Dodson (No 2) [2020] VSC 266 (‘Costs judgment’).

[T]he plaintiff filed two affidavits: an affidavit sworn 19 October 2018 by the plaintiff and an affidavit sworn 19 February 2019 by Wendy Dodson. The affidavit of Wendy Dodson was not relied on by the plaintiff at trial.
The plaintiff’s affidavit contained a substantial amount of inadmissible and irrelevant material. These issues were first raised by the Court in an email to the parties dated 30 May 2019, as follows:
The plaintiff’s affidavit has a substantial amount of irrelevant and inadmissible detail and the affidavit could not be tendered in its current form. In the circumstances, the costs of and incidental to the affidavit will be an issue for the Court.

By return email dated 14 June 2019, the plaintiff’s solicitors informed the Court that its observations were noted.
On 19 June 2019, the Court reminded the plaintiff’s solicitors that it would be necessary to review the affidavits sought to be relied upon by 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 Dodson; Dodson v Dodson (No 3)

Details

AGLC: Re Dodson; Dodson v Dodson (No 3) [2020] VSC 862
Case: [2020] VSC 862
Decision Date: 17 December 2020

CaseChat Overview and Summary

In the case of Re Dodson; Dodson v Dodson (No 3), the plaintiff sought family provision from the estate of the deceased. The defendants were the children of the deceased who opposed the plaintiff's claim. The matter was heard in the Supreme Court of Victoria. The plaintiff, who was also the deceased's former de facto partner, was ultimately unsuccessful in their claim and was ordered to pay the defendants' costs from their share of the estate. The plaintiff's solicitor had failed to comply with a prior Court requirement to amend an affidavit that contained irrelevant and inadmissible material.

The legal issues that arose in this case related to the circumstances under which a court may order a plaintiff to pay the defendant's costs from the plaintiff's share of the estate and whether the costs claimed by the solicitors for the preparation of the affidavits were wasted. The Court had to consider the relevant provisions of the Supreme Court Act 1986 (Vic), the Supreme Court (General Civil Procedure) Rules 2015 (Vic), and the Civil Procedure Act 2010 (Vic). Additionally, the Court considered the case of Dura (Australia) Constructions Pty Ltd v Hue Boutique Living (No 5) (2014) 48 VR 1.

The Court found that the plaintiff's solicitor had failed to comply with a prior requirement to amend an affidavit containing irrelevant and inadmissible material, which led to an unnecessary trial. Furthermore, the Court noted that the affidavit of the plaintiff's wife was not relied upon at trial. As a result, the Court held that the costs claimed by the solicitors for the preparation of the affidavits were wasted and ordered the plaintiff to pay the defendants' costs from their share of the estate. The Court reasoned that the plaintiff's conduct had resulted in an unnecessary trial, which had caused the defendants to incur additional costs.

In conclusion, the Court held that the plaintiff was liable to pay the defendants' costs from their share of the estate due to the plaintiff's solicitor's failure to comply with a prior requirement to amend an affidavit and the unnecessary trial that ensued. The Court also held that the costs claimed by the solicitors for the preparation of the affidavits were wasted and ordered the plaintiff to pay those costs. This decision highlights the importance of complying with Court requirements and the potential consequences of failing to do so.

Orders