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Re Hayes (No 3)

Re Hayes (No 3)

Case [2023] VSC 5 13 January 2023

Costs

Admissibility of Evidence

Obligations of Solicitors

Civil Litigation & Procedure

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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 THOMAS SYDNEY PASCOE HAYES, 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:	13 January 2023
CASE MAY BE CITED AS:	Re Hayes (No 3)
MEDIUM NEUTRAL CITATION:	[2023] VSC 5 (First Revision 17 January 2023)

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COSTS – Indemnity costs – Where applicant unsuccessful in seeking revocation of grant of probate – Whether special circumstances exist warranting indemnity costs order – Indemnity costs ordered – Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 – Supreme Court Act 1986 (Vic) s 24, Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.30.1.

CIVIL PROCEDURE – Whether overarching obligations contravened by applicant’s solicitor – Requirement of proper basis – Obligation to ensure costs are reasonable and proportionate – Obligation to narrow the issues in dispute – Where obligations contravened by solicitor – Where solicitor ordered to indemnify applicant in part – Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 – Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1 – Civil Procedure Act 2010 (Vic) ss 18, 23, 24, 29.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Still & Co Lawyers
For the Applicant	Sartori Legal Services
For the non-parties	Sartori Legal Services

HER HONOUR:

Introduction

Thomas Hayes (‘the deceased’) died on 21 November 2019. The deceased’s last will is dated 24 September 2008 (‘the 2008 will’), and the deceased’s penultimate will is dated 17 September 2003 (‘the 2003 will’). In January 2020, probate of the 2008 will was granted to the plaintiff.

The applicant is a niece of the deceased. She sought revocation of the grant of probate of the 2008 will on the basis that the deceased lacked testamentary capacity, and did not know and approve of the contents of the 2008 will or the 2003 will. The application was dismissed in reasons delivered 11 April 2022 (‘the reasons’),[1] with a finding that a prima facie case had not been established in respect of either ground. In the event that the parties could not agree on the costs of the application, the plaintiff and the applicant were to file written submissions by 10 May 2022.
[1]Re Hayes [2022] VSC 178 (‘reasons’).

For the reasons that follow, the Court has determined that:

(a) the applicant is to pay the plaintiff’s costs of and incidental to the application on an indemnity basis, to be taxed in default of agreement; and

(b) the solicitors for the applicant, Mr Peter Connor and his firm Constable Connor & Co, are to indemnify the applicant as to one quarter of those costs.

Background

Following the delivery of 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 Hayes (No 3)

Details

AGLC: Re Hayes (No 3) [2023] VSC 5
Case: [2023] VSC 5
Decision Date: 13 January 2023

CaseChat Overview and Summary

In the matter of Re Hayes (No 3), the applicant sought to revoke a grant of probate in the Supreme Court of Victoria. The application was brought by the applicant, who contested the validity of the will and sought to challenge the grant of probate to the respondents. The court was required to determine whether indemnity costs should be awarded to the applicant, considering the unsuccessful outcome of the revocation application.

The primary legal issue before the court was whether special circumstances existed that warranted an indemnity costs order in favour of the applicant. The court examined whether the applicant's solicitor had contravened the overarching obligations under the Civil Procedure Act 2010 (Vic), specifically sections 18, 23, 24, and 29, which require a proper basis for the proceedings, reasonable and proportionate costs, and the narrowing of issues in dispute. The court also considered the principles set out in Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, which address indemnity costs in the context of unsuccessful applications.

The court found that the applicant's solicitor had contravened the overarching obligations by failing to ensure that the costs were reasonable and proportionate and by not narrowing the issues in dispute. The court ordered the solicitor to indemnify the applicant in part for the costs incurred. The court then considered the application for indemnity costs and found that special circumstances existed due to the solicitor's misconduct. As a result, the court ordered indemnity costs in favour of the applicant.

The court's final orders included an indemnity costs order in favour of the applicant, with the solicitor ordered to indemnify the applicant for a portion of the costs incurred. The court emphasised the importance of adhering to the overarching obligations in civil proceedings to avoid such costs orders.

Orders