| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S CI 2018 02081
| IN THE MATTER of the Estate of MILAN JANSON, deceased | |
| and | |
| IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic) | |
| ELLEN GASH | Plaintiff |
| v | |
| EVA RUZICKA (who is sued as the Executor of the Estate of the late MILAN JANSON, deceased) | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 20 September 2022 |
CASE MAY BE CITED AS: | Re Janson; Gash v Ruzicka (No 3) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 557 |
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COSTS – Where sole issue in dispute was quantum of provision – Where defendant made Calderbank offer and offer of compromise and open offer – Where all offers rejected by plaintiff – Where further provision substantially less than Calderbank offer and offer of compromise – Where plaintiff’s rejection of offers was unreasonable – Where plaintiff seeks that all costs be paid out of the estate – Supreme Court Act 1986 (Vic) s 24 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 26.08, 63.26 – Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435.
LEGAL PRACTITIONERS – Overarching obligations under the Civil Procedure Act – Where plaintiff’s solicitor failed to comply with Court’s instruction to address irrelevant and inadmissible material – Whether plaintiff’s costs claimed are reasonable and proportionate to issues and amount in dispute – Discretionary considerations under the Civil Procedure Act – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.23 – Civil Procedure Act 2010 (Vic) ss 20, 22, 24, 25, 29 – Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C H Sparke KC | Marshalls+Dent+Wilmoth Lawyers |
| For the Defendant | Ms M Rozner | Lake Street Lawyers |
HER HONOUR:
Introduction
Milan Janson (‘the deceased’) died on 7 August 2017, leaving a will dated 20 March 2015. The deceased was survived by his partner (‘the defendant’), his brother and his two adult daughters. The plaintiff is a daughter of the deceased.
By this proceeding, the plaintiff sought further provision from the deceased’s estate pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (‘the Administration and Probate Act’). Following a trial held in April 2020, the Court delivered preliminary reasons on 23 July 2020 (‘the first reasons’)[1] in which it concluded that it was unable to make any order for further provision as the evidence presented by the plaintiff of her financial circumstances was deficient, and provided the plaintiff with an opportunity to file further evidence. Following a further day of trial, the Court delivered its final judgment on the plaintiff’s claim on 21 March 2022 (‘the final reasons’)[2] in which it was ordered that further provision for the proper maintenance and support of the plaintiff be made out of the deceased’s estate.[3]
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- Case
- [2022] VSC 557
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the plaintiff's rejection of the defendant's offers was unreasonable, and if so, whether the plaintiff should be ordered to pay the defendant's costs from the estate. Additionally, the court had to consider whether the plaintiff's solicitor had complied with their overarching obligations under the Civil Procedure Act 2010 (Vic), specifically in relation to addressing irrelevant and inadmissible material.
The court found that the plaintiff's rejection of the defendant's offers was unreasonable and ordered that all costs be paid out of the estate. The court also found that the plaintiff's solicitor had failed to comply with the court's instruction to address irrelevant and inadmissible material, which led to the plaintiff's costs being deemed unreasonable and disproportionate. The court considered the discretionary considerations under the Civil Procedure Act 2010 (Vic) and ruled that the plaintiff should not be reimbursed for their costs from the estate. This decision was based on the precedent set in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 and Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1.
The final orders of the court were that the defendant's costs were to be paid out of the estate, and the plaintiff was not entitled to any reimbursement for their costs. The court emphasised the importance of adhering to the overarching obligations under the Civil Procedure Act 2010 (Vic) and the need for parties to act reasonably in the context of offers to settle.
Orders
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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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