Re Hayes (No 2) - [2022] VSC 515

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…

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 Hayes (No 2)

Details

AGLC: Re Hayes (No 2) [2022] VSC 515
Case: [2022] VSC 515
Decision Date: 1 September 2022

CaseChat Overview and Summary

In the matter of Re Hayes (No 2), the applicant sought to revoke a grant of probate which had been issued in relation to the estate of a deceased person. The matter was heard in the Supreme Court of Victoria. The applicant contended that the executor named in the grant of probate had acted improperly and had not fulfilled their obligations under the Wills Act 1958 (Vic). The legal issues before the court were whether the applicant had established special circumstances warranting an indemnity costs order, and whether there had been a contravention of the overarching obligations by the applicant or the applicant’s solicitor.

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