Re Jabe; Kennedy v Schwarcz - [2021] VSC 106

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TESTATORS’ FAMILY MAINTENANCE LIST

S ECI 2018 02829

IN THE MATTER of Part IV of the Administration and Probate Act 1958

- and –

IN THE MATTER of the Will of ELLA JABE, deceased

BETWEEN:

DENISE KENNEDY	Plaintiff
v
PETER SCHWARCZ and PATRICIA SHARP (as executors of the Will of Ella Jabe, deceased)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	10 March 2021
CASE MAY BE CITED AS:	Re Jabe; Kennedy v Schwarcz
MEDIUM NEUTRAL CITATION:	[2021] VSC 106

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COSTS – Where family provision proceeding by adult daughter settled at mediation – Whether costs of practitioners reasonable and proportionate and fair and reasonable – Whether practitioners failed to provide total costs estimate or failed to comply with ongoing disclosure obligations – Whether costs agreements void for non-disclosure – Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 ss 172(1)–(3), 174(1)–(3), (6), 178(1), 180(2)–(4), 207; Civil Procedure Act 2010 (Vic) s 24 (a)–(b).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms SF Cherry	Goodman Group Lawyers
For the Defendants	Mr M Ravech	Spigler & Schwarcz

HER HONOUR:

Introduction

Ella Jabe (‘the deceased’) died on 23 May 2018, leaving a will dated 9 March 2015 (‘the will’). The deceased was survived by her adult daughter, Denise Kennedy (‘the plaintiff’).

Pursuant to the will, the deceased appointed Peter Schwarcz and Patricia Sharp (‘the defendants’) as the executors and trustees of her estate. Mr Schwarcz is a principal of Spigler & Schwarcz (‘S&S’), the law firm representing the executors, and Ms Sharp is an employee of that firm.

Pursuant to her will, the deceased made some small bequests to certain individuals totalling $31,000 and bequeathed the residue of her estate to Ms Sharp, whom she met after Ms Sharp had commenced working as a law clerk at S&S, and Lisa Simonetta, whom she met while Ms Simonetta worked as a receptionist at the medical surgery frequented by the deceased.

The deceased stated in her will that she made no provision for the plaintiff because she had provided adequately for the plaintiff in her lifetime, that the plaintiff deemed it appropriate not to have contact with her for the twenty years prior to the execution of the will and that the deceased’s grandchildren similarly did not have contact with her for many years.

On 23 May 2018, S&S was engaged by Ms Sharp to apply for probate of the deceased’s will. On 22 August 2018, probate of the deceased’s will was granted to the defendants. The value of the estate was estimated as $326,147.90.

Procedural history

On 12 December 2018, the plaintiff retained Goodman Group Lawyers (‘GGL’) to act in relation to making a claim for provision from the estate, pursuant to pt IV of the Administration and Probate Act 1958.

By originating motion filed 18 December 2018, the plaintiff’s application for provision was filed on the ground that…

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.

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Details

Case: [2021] VSC 106
Decision Date: 10 March 2021

CaseChat Overview and Summary

The case of Re Jabe; Kennedy v Schwarcz involved a family provision proceeding brought by an adult daughter, Kennedy, against Schwarcz, the executor of her mother's will. The dispute centred around whether the executor had adequately provided for Kennedy under the will. The matter was settled at mediation, but the court was required to determine whether the costs incurred by the parties were reasonable and proportionate. Specifically, the court needed to assess if the practitioners involved had provided a total costs estimate and complied with ongoing disclosure obligations under the Legal Profession Uniform Law Application Act 2014 (Vic).

The primary legal issues the court addressed were whether the costs incurred were fair and reasonable, whether the practitioners had failed to provide a total costs estimate or comply with disclosure obligations, and whether the costs agreements were void due to non-disclosure. The court examined sections 172(1)–(3), 174(1)–(3), (6), 178(1), 180(2)–(4), and 207 of the Legal Profession Uniform Law Application Act 2014 (Vic), as well as section 24 (a)–(b) of the Civil Procedure Act 2010 (Vic). The court also considered the principles of fairness and reasonableness in determining the appropriate costs.

The court concluded that the costs incurred by Kennedy were fair and reasonable given the nature and complexity of the proceeding. The court found that while there were some shortcomings in the disclosure of costs, these did not significantly impact the overall fairness of the costs. The court held that the costs agreements were not void due to non-disclosure, as the practitioners had made reasonable efforts to provide the necessary information. Consequently, the court approved the costs as reasonable and proportionate.

The final orders of the court confirmed the approval of the costs incurred by Kennedy and directed the executor to pay those costs within a specified timeframe. The court's decision provided clarity on the handling of costs in family provision proceedings, reinforcing the importance of transparency and reasonableness in legal cost agreements.

Orders