Re Finnie; Petrovska v Morrison (No 3) - [2021] VSC 715

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2018 00174

VESNA PETROVSKA	Plaintiff
v
JOHN ALEXANDER MORRISON (in his capacity as executor and trustee of the estate of JAMES FINLAY FINNIE, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	29 October 2021
CASE MAY BE CITED AS:	Re Finnie; Petrovska v Morrison (No 3)
MEDIUM NEUTRAL CITATION:	[2021] VSC 715

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COSTS — Where domestic partner of deceased sought provision from estate — Where sole issue was quantum of provision — Whether costs of practitioners reasonable and proportionate and fair and reasonable — Whether practitioners complied with disclosure obligations — Where one firm failed to produce a costs agreement and costs disclosure statement — No prima facie evidence that costs are fair and reasonable — Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 ss 172(1)–(3), 174(1)–(3), (6), 178(1), 180(2)–(4), 207; Civil Procedure Act 2010 (Vic) s 24 (a)–(b).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms JA Findlay	Whyte, Just & Moore Solicitors
For the Defendant	Mr PA Cassidy	Coulter Roache Lawyers

HER HONOUR:

Introduction

James Finnie (‘the deceased’) died on 12 September 2017, leaving a will dated 25 June 1992 (‘the will’). The deceased was survived by his partner of nearly 20 years (‘the plaintiff’), three of his four adult children from an earlier marriage, and three grandchildren who were children of the deceased’s son who predeceased him.

The will was made prior to the commencement of the relationship between the deceased and the plaintiff and made no provision for her. Pursuant to the will, the deceased’s four children were to inherit his estate in equal shares, with a gift over if any of the children predeceased him.

After probate of the will was granted to the executor of the estate (‘the defendant’), the plaintiff brought a claim for provision from the estate, pursuant to Part IV of the Administration and Probate Act 1958 (Vic).

The defendant accepted the deceased owed a moral duty to provide for the plaintiff and that the deceased had failed to make adequate provision for her proper maintenance and support. The sole issue at trial was the quantum of provision which should be made to the plaintiff.

The trial of the proceeding was held on 22 September 2020. In reasons published on 30 March 2021, the Court determined that the plaintiff should receive 40 per cent of the estate available for distribution.[1] At trial the value of the estate available for distribution was estimated at approximately $807,024.[2] The Court was precluded, however, from making final orders due to the existence of unknown variables affecting the actual value of the estate. Those variables were the total costs of the parties estimated at $198,000, and an allowance for capital gains tax estimated at $77,000.[3]
[1]Re Finnie; Petrovska v Morrison [2021] VSC 153 (‘Reasons’).
[2]Ibid [126]–[127].
[3]Ibid [130]. The estimated value of $807,024…

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.

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Details

Case: [2021] VSC 715
Decision Date: 29 October 2021

CaseChat Overview and Summary

The applicants in this case, Petrovska and Morrison, sought provision from the estate of Finnie, who had passed away. The dispute centred on the quantum of the provision sought by Petrovska as the deceased's domestic partner. The court had to decide on the fairness and reasonableness of the costs incurred by the practitioners involved in the case, particularly focusing on whether these costs were reasonable and proportionate, and whether the practitioners had complied with their disclosure obligations.

The primary legal issue was whether the costs incurred by the practitioners were fair and reasonable under the Legal Profession Uniform Law Application Act 2014 (Vic). The court examined whether the practitioners had produced a costs agreement and a costs disclosure statement as required, and whether the absence of these documents affected the fairness of the costs. The court also had to consider the practitioners' adherence to the principles of fairness and reasonableness as outlined in the Civil Procedure Act 2010 (Vic).

The court found that one of the firms had not produced a costs agreement or a costs disclosure statement, which led to a lack of prima facie evidence that the costs were fair and reasonable. The court emphasised that the absence of these documents meant that the firm had not met its obligations under the Legal Profession Uniform Law Application Act 2014 (Vic). Consequently, the court ruled that the costs incurred by this firm were not fair and reasonable. The court then ordered that the practitioners comply with their disclosure obligations and ensure that any future costs are fair, reasonable, and proportionate.

The final order of the court was that Petrovska and Morrison were to bear their own costs for the proceedings. This decision underscored the importance of practitioners adhering to disclosure obligations to ensure the fairness and reasonableness of the costs in estate disputes.

Orders