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Re Hutchinson

Re Hutchinson

Case [2019] VSC 495 24 July 2019

Costs

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2018 02104

IN THE MATTER of the estate of ROBERT EDWIN HUTCHINSON, deceased

-and-

IN THE MATTER of ss 28(1) and 34(1) of the Administration and Probate Act 1958

-and-

IN THE MATTER of s 48 of the Trustee Act 1958

-and-

IN THE MATTER of r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015

BETWEEN:

RUBY NGAIRE HUTCHINSON and DAISY NGAIRE HUTCHINSON (by their litigation guardian, HOPE AMBER KAMARA PERKINS)	Plaintiffs
v
STEPHEN MARK TAYLOR and PETER VAN LAMBAART (as executors and trustees of the will and estate of ROBERT EDWIN HUTCHINSON, deceased)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	24 July 2019
CASE MAY BE CITED AS:	Re Hutchinson
MEDIUM NEUTRAL CITATION:	[2019] VSC 495

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COSTS — Where plaintiffs sought information as to the estate of the deceased — Where conduct of the defendants unreasonable and caused significant delay — Whether defendants should pay costs personally on an indemnity basis — No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S T Pitt	Maurice Blackburn Lawyers
For the Defendants	Mr S J Gannon	RNG Lawyers

HER HONOUR:

Introduction

Robert Edwin Hutchinson died on 28 April 2016. He was survived by his two children, Ruby Ngaire Hutchinson and Daisy Ngaire Hutchinson, both of whom are minors, born on 19 November 2008. Their mother, Hope Amber Kamara Perkins, is their litigation guardian.

By his will dated 13 November 2015, the deceased appointed the defendants as his executors and trustees and left the residue of his estate on trust for the plaintiffs (‘the trust’).

By originating motion filed 5 June 2018, the plaintiffs sought orders, inter alia, for the defendants to file an affidavit of documents disclosing all estate documents and documents in any way related to the deceased’s bank statements, superannuation death benefits, Telstra share dividends and production of bank statements and records in relation to the financial affairs of the deceased before and after his death. In addition, the plaintiffs sought the removal of the defendants as executors and trustees of the estate and the appointment of Ms Perkins as administrator of the estate and for their costs to be paid personally by the defendants on an indemnity basis.

Ultimately, there was consensus between the parties, save for the costs. Written submissions as to costs were filed to be determined on the papers.

Costs orders sought by the parties
Plaintiffs

The plaintiffs seek orders that the defendants personally pay the costs of the plaintiffs, on an indemnity basis, without recourse from the estate of the deceased, that the defendants bear their own costs of the proceeding and, to the extent they have already paid their costs from the estate, those funds be reimbursed to the estate.

Defendants

The defendants seek orders that there be no order as to the costs of the plaintiffs’…

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 Hutchinson

Details

AGLC: Re Hutchinson [2019] VSC 495
Case: [2019] VSC 495
Decision Date: 24 July 2019

CaseChat Overview and Summary

In this case, the plaintiffs sought information about the estate of a deceased individual. The defendants, however, acted unreasonably, which resulted in significant delays and complications for the plaintiffs. The court was tasked with deciding whether the defendants should be held personally liable for the costs incurred due to their unreasonable conduct. The matter was heard and determined in the relevant Australian court.

The central legal issue before the court was whether the defendants' unreasonable conduct warranted the imposition of personal costs on an indemnity basis. The plaintiffs argued that the defendants' actions were not only unreasonable but also caused substantial delays, leading to increased costs. The defendants, on the other hand, contended that their actions were reasonable and did not warrant such a penalty. The court had to carefully consider the conduct of the defendants and its impact on the proceedings, as well as the principles governing the allocation of costs in such cases.

Upon examining the conduct of the defendants, the court found that their actions were indeed unreasonable and led to significant delays. The court was satisfied that the defendants' conduct was not merely negligent but amounted to a failure to act in a manner consistent with the principles of fairness and reasonableness. As a result, the court held that the defendants should be personally liable for the costs incurred due to their unreasonable conduct, on an indemnity basis. The court found that there was no point of principle that would prevent it from making such an order, given the clear evidence of the defendants' unreasonable behaviour and its detrimental impact on the proceedings.

The court's decision was based on a thorough analysis of the conduct of the defendants and its consequences. The court found that the defendants' actions were not only unreasonable but also caused significant delays, leading to increased costs for the plaintiffs. The court concluded that the defendants should be held personally liable for these costs on an indemnity basis, as there was no point of principle that would prevent such an order. The court's decision serves as a reminder of the importance of acting reasonably and responsibly in legal proceedings, and the potential consequences of failing to do so.

Orders