| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2020 24528
| MARCIA BAILEY | Plaintiff |
| v | |
| NELLIE THELMA O’CONNOR-GUNN and NORMAN WILLIAM MADDOCK JUNIOR (as executors of the will and estate of SHIRLEY TAYLOR MADDOCK, deceased) | Defendants |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 12 January 2023 |
CASE MAY BE CITED AS: | Re Maddock; Bailey v Maddock (No 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 2 |
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COSTS – Contested probate proceeding – Where former defendant objected to grant on grounds of lack of testamentary capacity and suspicious circumstances – Where plaintiff did not accept open offer – Where determination of validity of will required prior to approval of compromise – Where plaintiff unsuccessful – Where failure to accept open offer was unreasonable in the circumstances – Supreme Court Act 1986 (Vic) s 24 – Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Maurice Blackburn | |
| For the Defendants | Hicks Oakley Chessell Williams[1] |
[1]The former defendant, Shirley Taylor Maddock, by her administrator, Australian Unity Trustees Limited, was represented by KCL Law.
HER HONOUR:
Introduction
This proceeding concerned the validity of the last will (‘the 2020 will’) of Norman William Maddock (‘the deceased’). Marcia Bailey, a friend of the deceased, is the plaintiff (‘the plaintiff’). The defendant was the deceased’s widow, Shirley Taylor Maddock, by her administrator, Australian Unity Trustees Limited (‘AUTL’). Mrs Maddock died on 30 May 2022 (‘the former defendant’).
Judgment was delivered on 21 June 2022.[2] The proceeding was dismissed, save for costs. The parties were unable to agree on the costs of the proceeding and filed submissions as to their costs.
By orders made 6 December 2022, the former defendant’s children, Nellie Thelma O’Connor-Gunn and Norman William Maddock Junior, in their capacity as executors and trustees of the former defendant’s estate, were substituted as the defendants in the proceeding (‘the defendants’).
Factual background
The details of the instructions given by the deceased to a solicitor, Anthony Naughton of the firm Morley Naughton Pearn & Cook (‘MNPC’), for the making of the deceased’s last three wills and a power of attorney in favour of the plaintiff, as well as in relation to the proposal that the deceased gift a property located in Bentleigh East (‘the Bentleigh East property’) to the plaintiff, are set out in the reasons for judgment.[3] In regard to the latter issue, Mr Naughton opined that if the deceased were to predecease the former defendant, there would be litigation by the former defendant and the deceased’s children.[4] As became clear, the former defendant had already lodged a caveat over the Bentleigh East property. Ultimately, the deceased devised the Bentleigh East property to the plaintiff in the 2020 will.
[3]Ibid [6]–[8], [43]–[57].
[4]Ibid [53].
2020
The deceased died on 17 June 2020. On 14…
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- Re Maddock; Bailey v Maddock (No 2) [2023] VSC 2
- Case
- [2023] VSC 2
- Decision Date
CaseChat Overview and Summary
The court considered the relevant statutory provisions and case law, including Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435, to assess the reasonableness of the plaintiff's conduct. The court determined that the plaintiff's refusal was unreasonable given the circumstances, particularly as the resolution of the validity of the will was a prerequisite for approving the compromise. This was deemed to be an important factor in assessing the costs, as the Supreme Court Act 1986 (Vic) s 24 allows the court to consider such matters when deciding on costs in contested probate proceedings.
The court found that the plaintiff's refusal to accept the open offer was unreasonable and ordered that costs be paid by the plaintiff. The court's decision hinged on the necessity of resolving the validity of the will prior to approving the compromise and the plaintiff's unreasonable conduct in refusing the open offer. This case underscores the importance of considering the broader context and procedural requirements when assessing costs in contested probate proceedings.
Orders
Orders of the court
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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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