JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2019
DATE OF JUDGMENT:	16 April 2019
CASE MAY BE CITED AS:	Re Munro (Costs)
MEDIUM NEUTRAL CITATION:	[2019] VSC 243

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COSTS – Probate costs rules – Caveat objecting to grant of probate lodged with Registrar of probates – Grounds alleging executors’ conflict of interest and duty, lack of testator’s testamentary capacity and testator did not know and approve the contents of his will – Caveat summarily dismissed pursuant to Civil Procedure Act 2010 (Vic) – Whether the costs follow the event or should be paid wholly or partly out of the deceased’s estate – Whether costs should be paid on an indemnity basis – In the Will of Millar [1908] VLR 682; Perpetual Trustee Company Ltd v Baker [1999] NSWCA 244; Giarusso v Veca [2105] VSCA 214; Re Veall [2016] VSC 232.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J L Smith	Marsh & Maher Richmond Bennison Lawyers
For the Caveator	Mr J Rizzi	Portfolio Law Pty Ltd

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Costs principles.................................................................................................................................. 1

Plaintiffs’ submissions...................................................................................................................... 5

Caveator’s submissions..................................................................................................................... 6

Consideration...................................................................................................................................... 7

Conclusion......................................................................................................................................... 11

HIS HONOUR:

Introduction

These reasons concern the costs payable in consequence of an order of the Court made on 18 December 2018 that a probate caveat filed on 6 March 2018 under the Administration and Probate Act 1958 (Vic) (A&P Act) be summarily dismissed. I published reasons for the order on 4 December 2018 as Re Munro [2018] VSC 747 (Reasons). I will not repeat the reasons save where necessary and I will use the same abbreviations and definitions used in those reasons.

The plaintiffs seek an order that the caveator pay the plaintiffs’ costs on an indemnity basis. The caveator seeks that the plaintiffs’ and the caveator’s costs should be paid out of the estate or, in the alternative, that there should be no order as to the caveator’s costs.

For the reasons set out below, in my view, the plaintiffs’ costs of the proceeding should be paid by the caveator on an indemnity basis from the time that it should have been clear to the caveator’s legal advisors that there was no real prospect of his opposition to the grant of probate to the plaintiffs succeeding. That was a reasonable time after the filing and service of the principle affidavits relied on by the plaintiffs, being Patricia’s first affidavit and Craig’s affidavit, which were filed on 18 June 2018. I identify 5 July 2018 as an appropriate date from which the caveator should pay the plaintiffs’ costs on an indemnity basis. Before that date, the caveator should bear his own costs and the plaintiffs’…

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 Munro (Costs)

Details

AGLC: Re Munro (Costs) [2019] VSC 243
Case: [2019] VSC 243
Decision Date: 16 April 2019

CaseChat Overview and Summary

The case of Re Munro involved a dispute over the costs associated with a caveat that was lodged objecting to the grant of probate. The caveat was filed by a party who raised issues about the executors' conflict of interest, their duty, the testator's testamentary capacity, and whether the testator knew and approved the contents of his will. The caveat was dismissed summarily under the Civil Procedure Act 2010 (Vic). The primary legal issue before the court was whether the costs incurred should be paid out of the deceased's estate or if the costs should follow the event, and if they should be paid on an indemnity basis.

The court examined several precedents to determine the appropriate approach to the costs. It considered the case of In the Will of Millar, which established that generally, costs follow the event unless there are exceptional circumstances. The court also referred to Perpetual Trustee Company Ltd v Baker, which highlighted that costs should be paid out of the estate unless there is a clear basis for them to follow the event. The case of Giarusso v Veca further emphasised that the court has the discretion to order costs on an indemnity basis in cases of bad faith or where the caveator's conduct was vexatious. Finally, the court considered Re Veall, which provided guidance on the application of these principles in the context of probate disputes.

After reviewing the relevant authorities, the court concluded that the costs should follow the event, as there were no exceptional circumstances that warranted an order for the costs to be paid out of the deceased's estate. The court found that the caveator's objections did not amount to bad faith or vexatious conduct, and therefore, an indemnity costs order was not warranted. The court held that the caveator should bear the costs of the proceedings.

The final orders of the court were that the caveator was to bear the costs of the proceedings, and no indemnity costs order was to be made. The costs were to follow the event, meaning that the executors were not to be burdened with paying the caveator's costs out of the deceased's estate.

Orders