| 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…
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- AGLC
- Re Hayes (No 3) [2023] VSC 5
- Case
- [2023] VSC 5
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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