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Re Moran (No 2)

Re Moran (No 2)

Case [2023] VSC 83 1 March 2023

Costs

Calderbank Offer

Unconscionable Conduct

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 01152

IN THE MATTER of the estate of KEVIN CHARLES MORAN, deceased
and
IN THE MATTER of an application pursuant to Ord 54 of the Supreme Court (General Civil Procedure) Rules 2015
and
IN THE MATTER of s 76 of the Guardianship and Administration Act 2019
BETWEEN
KYLIE LOUISE MAMONE and AARON GRAY MORAN	Plaintiffs
and
PAUL RONALD MORAN (who is sued as executor by substitution of the estate of KEVIN CHARLES MORAN, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	1 March 2023
CASE MAY BE CITED AS:	Re Moran (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 83

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COSTS – Where plaintiffs’ application concerning construction of will dismissed – Where plaintiffs did not accept defendant’s Calderbank offer – Whether plaintiffs’ rejection of offer was unreasonable – Where offer expressed to be conditional on consent of third person – Where no evidence of consent of third person conveyed to plaintiffs – Where defendant seeks indemnity costs – Where plaintiffs seek costs from the estate – Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435; Apostolidis v Kalenik (No 2) (2011) 35 VR 563.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S P Newton	Equity Legal Australia
For the Defendant	Mr N J Baum	T J Mulvany & Co

HER HONOUR:

Introduction

This proceeding concerned a devise of real estate in the will of Kevin Charles Moran (‘the deceased’) dated 24 September 1976 (‘the will’). The plaintiffs are the deceased’s two grandchildren by his son, Geoffrey Moran (‘Geoffrey’). The defendant is the deceased’s nephew by his brother, Ronald Moran (‘Ronald’). The deceased died on 22 July 2020. He was predeceased by Geoffrey, and Ronald subsequently died in November 2021. Both Geoffrey and Ronald were beneficiaries under the will.

By originating motion filed 5 April 2022, the plaintiffs sought declarations that they were entitled to receive so much of the deceased’s estate as represented the deceased’s half-share of the proceeds of sale of a property in Thorpe Street, Newport (‘the Thorpe Street property’).

The Court delivered its reasons for judgment on 14 December 2022 (‘the reasons’),[1] dismissing the plaintiffs’ claim. Orders were made for written submissions on costs to be filed by 25 January 2022, if the parties could not otherwise agree, with costs to be determined on the papers.
[1]Re Moran [2022] VSC 776 (‘reasons’).

Relevant background

On 28 June 2021, the defendant’s solicitors made contact by email with the plaintiffs’ mother, Cheryl Moran (‘Cheryl’), regarding the plaintiffs’ possible entitlement under the will. That email relevantly provided as follows:

[The deceased] died in July 2020. My firm is assisting the executor [Ronald] in relation to the administration of the estate.
…
It is possible that [Geoffrey’s] children may have an entitlement, pursuant to the Will of [the deceased]. It…

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 Moran (No 2)

Details

AGLC: Re Moran (No 2) [2023] VSC 83
Case: [2023] VSC 83
Decision Date: 1 March 2023

CaseChat Overview and Summary

The case of Re Moran (No 2) involved the plaintiffs, who were the beneficiaries of the estate of a deceased individual, and the defendant, who was the executor of the estate. The dispute centered around the construction of the deceased's will and the costs associated with the litigation. The matter was heard in the Supreme Court of Victoria. The plaintiffs sought to challenge the defendant's interpretation of the will, which they believed was incorrect. The defendant, in turn, argued that the plaintiffs' application was without merit and sought indemnity costs from the plaintiffs.

The primary legal issue before the court was whether the plaintiffs' rejection of the defendant's Calderbank offer was unreasonable. The offer was conditional on the consent of a third party, which the plaintiffs were not aware of at the time of the offer. The court had to determine whether the rejection of the offer was unreasonable and whether the defendant was entitled to indemnity costs. The court also had to consider the plaintiffs' application for costs from the estate.

The court found that the plaintiffs' rejection of the Calderbank offer was not unreasonable as they were not aware of the condition regarding the third party's consent. The court held that the defendant's offer was not a genuine offer as it was conditional on a matter that was not communicated to the plaintiffs. The court further found that the plaintiffs were not liable for the defendant's costs as the offer was not reasonable. In addition, the court granted the plaintiffs' application for costs from the estate.

In conclusion, the court dismissed the plaintiffs' application concerning the construction of the will and held that their rejection of the defendant's Calderbank offer was not unreasonable. The court found that the defendant was not entitled to indemnity costs from the plaintiffs and granted the plaintiffs' application for costs from the estate. The court's decision was based on the principles set out in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 and Apostolidis v Kalenik (No 2) (2011) 35 VR 563.

Orders