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Re Hobbs (No 2)

Re Hobbs (No 2)

Case [2017] VSC 611 12 October 2017

Costs

Res Judicata

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2016 05959

IN THE MATTER of the Will of CHRISTA RENATE HOBBS, deceased (in the Will called Christal Renate Hobbs)

KURT RUDIGER FRAHM	Plaintiff
v
JANICE MARY DAVIS	Defendant

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JUDGE:	Garde J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	12 October 2017
CASE MAY BE CITED AS:	Re Hobbs (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 611

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WILLS AND ESTATES – Costs – Offers of compromise – Award of costs in probate cases – Legal principles – Exceptions to an order that costs follow the event – Application of exceptions – Second exception applies – No order as to costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr P T Vout of Counsel	Tisher Liner FC Law
For the Defendant	Mr R B Phillips of Counsel	Hicks Oakley Chessell Williams

HIS HONOUR:

Introduction

The plaintiff, Rudi Frahm, seeks an order that the defendant, Janice Davis, pay the costs of the proceeding in which he propounded the will of Ms Christa Renate Hobbs dated 1 May 2008 (‘2008 Will’). Mr Frahm is the executor named in the 2008 Will. His application for probate was opposed by Ms Davis. Ms Davis contended that probate should be granted in relation to one of two informal documents purportedly signed by Ms Hobbs dated 21 December 2008 (‘first document’) and 15 February 2009 (‘second document’). On 27 July 2017, I determined that probate should be granted of the 2008 Will, but not the informal documents.[1]
[1]Re Hobbs [2017] VSC 424 (‘Re Hobbs’).

The parties have subsequently filed written submissions as to costs.[2] An affidavit of Mr Frahm has been filed concerning the offers of compromise and correspondence about settlement that passed between the parties.[3]
[2]Plaintiff’s Submissions on Costs dated 24 August 2017; Defendant’s Submissions on Costs dated 6 September 2017; Plaintiff’s Submission in Reply on Costs dated 8 September 2017.
[3]Affidavit of Kurt Rudiger Frahm sworn 23 August 2017.

Offers of compromise

On 28 November 2015, Mr Frahm’s solicitors sent an offer of compromise to the solicitors then acting for Ms Davis with a view to settling the dispute. The offer of compromise was in the amount of $125,000 and was endorsed ‘without prejudice save as to costs’. It was made in full and final satisfaction of the proceeding and of three classes of claim that Ms Davis might have. The first was a claim for an entitlement under the last or any previous will of Ms Hobbs. The second was any claim pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (‘Act’) for further provision to be made for the maintenance and support of Ms Davis out of the estate of Ms Hobbs. The third related to any other claims or rights which Ms Davis had, has or may hereafter have in relation to the estate of Ms Hobbs. This…

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 Hobbs (No 2)

Details

AGLC: Re Hobbs (No 2) [2017] VSC 611
Case: [2017] VSC 611
Decision Date: 12 October 2017

CaseChat Overview and Summary

In the matter of Re Hobbs (No 2), the High Court was tasked with determining the appropriateness of awarding costs in a probate matter. The dispute arose between the executors of the estate of the deceased, who were seeking an order for costs from the other beneficiaries. The central issue before the court was whether the second exception to the general rule that costs follow the event was applicable in this case, which would result in no order for costs being made.

The legal issues before the court involved the interpretation and application of the relevant exceptions to the general rule of costs following the event. The court was required to consider the criteria set out in the precedents for the second exception, which allows for a departure from the usual rule when it is just and equitable to do so. The court examined whether the circumstances of the case warranted such an exception, particularly focusing on the nature of the dispute and the conduct of the parties involved.

The High Court determined that the second exception to the rule was applicable in this case. The court found that the nature of the dispute, as well as the conduct of the parties, justified a departure from the usual rule of costs following the event. The court concluded that the second exception was satisfied, as it was just and equitable not to make an order for costs. Consequently, the application for costs was dismissed, and no order as to costs was made.

No further orders were made by the court. The decision underscores the importance of carefully considering the applicability of exceptions to the general rule of costs following the event in probate matters. The court's reasoning highlights the need for a nuanced approach when determining whether an exception should be applied in a particular case.

Orders