| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2020 00044
IN THE MATTER of the will and estate of THOMAS SYDNEY PASCOE HAYES, deceased
| IAN BENTLEY STILL (in his capacity as the executor of the will and estate of the abovenamed deceased) | Plaintiff |
| v | |
| TACI HAYES | Applicant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 1 September 2022 |
CASE MAY BE CITED AS: | Re Hayes (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 515 |
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COSTS – Where applicant unsuccessful in seeking revocation of grant of probate – Whether special circumstances warrant indemnity costs order – Whether overarching obligations contravened by unsuccessful applicant or applicant’s solicitor – Where Court requires submissions from applicant and solicitor – Supreme Court Act 1986 (Vic) s 24 – Civil Procedure Act 2010 (Vic) ss 18, 24.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Still and Company Lawyers | |
| For the Applicant | Constable Connor & Co |
HER HONOUR:
Introduction
On 8 July 2020, the applicant filed a summons seeking, inter alia, revocation of the grant of probate of the will of Thomas Sydney Pascoe Hayes (‘the deceased’), dated 24 September 2008 (‘the 2008 will’).[1]
[1]The applicant also requested that the Court grant her leave to apply to the Registrar of Probates for a grant of letters of administration of the deceased’s estate. An application of this type cannot be made on an application such as the applicant’s.
On 11 April 2022, reasons were delivered and orders made dismissing the applicant’s summons.[2] The parties were ordered to file written submissions on costs by 10 May 2022, if they were unable to reach agreement. No agreement was reached by the parties.
[2]Re Hayes [2022] VSC 178 (‘Reasons’).
Plaintiff’s position as to costs
The plaintiff is a solicitor at the firm of Still and Company Lawyers. He is the executor and trustee of the estate of the deceased.
On 28 April 2022, before the date for filing costs submissions, the plaintiff informed the applicant’s solicitor, Mr Peter Connor of the firm Constable Connor & Co (‘Mr Connor’), that he was obtaining an assessment of his costs and sought Mr Connor’s consent to an order for the Court to fix a sum for the costs, so as to avoid additional legal costs that would accompany filing of costs submissions. Mr Connor did not respond to or acknowledge the plaintiff’s correspondence.
The plaintiff then engaged Grace Costs Consultants to provide an assessment of his costs. A costs assessment of $49,815.36 (exclusive of GST and disbursements) was received on 5 May 2022. On the same date, the plaintiff sent the costs assessment to Mr Connor, together with disbursements and proposed minutes of consent orders for the costs to be fixed in the sum of $49,815.36. Despite asking Mr Connor for an urgent response, the plaintiff did not receive an acknowledgement or response from him.
On 9 May 2022, the plaintiff filed written…
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- Re Hayes (No 2) [2022] VSC 515
- Case
- [2022] VSC 515
- Decision Date
CaseChat Overview and Summary
The court considered the evidence presented and determined that the applicant had not established special circumstances warranting an indemnity costs order. The court found that the applicant’s claims were not frivolous or vexatious, but the court was not satisfied that the applicant had acted in accordance with the overarching obligations. The court noted that the applicant and their solicitor had failed to provide adequate information and had not acted in a manner that was consistent with the principles of justice. The court concluded that the applicant’s conduct had not warranted an indemnity costs order, but that the overarching obligations had been contravened.
The court ordered that the applicant pay the respondent’s costs of the application on an indemnity basis, but that the amount of costs be assessed if either party applied within 14 days. The court also ordered that the applicant and their solicitor attend a costs conference to discuss the contraventions of the overarching obligations and the appropriate sanctions to be imposed. The court emphasised the importance of compliance with the overarching obligations and the need for parties and their solicitors to act in accordance with the principles of justice.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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