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Re Janson; Gash v Ruzicka (No 3)

Re Janson; Gash v Ruzicka (No 3)

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Case Copied 20 September 2022 33 min read

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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.

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]

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: [2022] VSC 557
Decision Date: 20 September 2022

CaseChat Overview and Summary

This case concerned a dispute over the costs of a provision in a statutory will. The parties involved were Gash, the plaintiff and executrix of the deceased's estate, and Ruzicka, the defendant. The dispute arose from the rejection of various offers to settle the quantum of a provision in the will, including a Calderbank offer and an offer of compromise. The case was heard in the Supreme Court of Victoria.

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