Re Hayes (No 3)

The matter before the court involved an application by an individual seeking the revocation of a grant of probate. The applicant was unsuccessful in their bid to have the grant of probate revoked. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether special circumstances existed that would warrant an order for indemnity costs in favour of the applicant, given their unsuccessful application. Additionally, the court considered whether the overarching obligations under the Civil Procedure Act 2010 (Vic) had been contravened by the applicant’s solicitor, particularly in relation to the proper basis for the application, the reasonableness and proportionality of the costs, and the obligation to narrow the issues in dispute.

In addressing these issues, the court noted that indemnity costs are only awarded in exceptional circumstances, typically where the opposing party has acted vexatiously, oppressively, or unreasonably. The court examined the conduct of the applicant’s solicitor and found that there had been a contravention of the overarching obligations, specifically in relation to the obligation to ensure costs are reasonable and proportionate and to narrow the issues in dispute. Consequently, the court ordered the applicant's solicitor to indemnify the respondent in part. This decision was influenced by precedents such as Yara Australia Pty Ltd v Oswal and Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5).

The court ultimately determined that the solicitor's conduct warranted an order for indemnity costs. The court emphasised the importance of adherence to the overarching obligations and the need to ensure that applications are made on a proper basis and that the costs incurred are reasonable and proportionate. The court's decision reflects a commitment to enforcing procedural fairness and ensuring that legal proceedings are conducted in an efficient and cost-effective manner. The final orders included an order for indemnity costs, reflecting the court's findings regarding the solicitor's conduct and the contravention of the overarching obligations.