Re Peters - [2019] VSC 200

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S ECI 2018 01070

IN THE MATTER of the estate of EDWARD RICHARD PETERS, deceased

-and-

IN THE MATTER of an application pursuant to ss 28 and 34 of the Administration and Probate Act 1958 and ss 48 and 51 of the Trustee Act 1958

BETWEEN

KEVIN GRAEME PHILLIP BELLMAN (as executor of the estate of BRENDA MAY BELLMAN)	Plaintiff
v
JOYCE MAY PETERS (as executor and trustee of the estate of EDWARD RICHARD PETERS and in her personal capacity)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	28 March 2019
CASE MAY BE CITED AS:	Re Peters
MEDIUM NEUTRAL CITATION:	[2019] VSC 200

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COSTS — Where plaintiff sought removal of defendant as trustee and administration accounts of estate — Where no proper basis for claims — Whether circumstances warrant special costs order — No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M McKenzie	Prior Law
For the Defendant	Ms G Grigoriou	Hibbert & Hodges

HER HONOUR:

Introduction

By originating motion filed 30 August 2018, the plaintiff sought the removal of the defendant as the executor and trustee of the estate of Edward Richard Peters deceased and the provision of administration accounts, pursuant to s 28 of the Administration and Probate Act 1958.

On 20 December 2018, the proceeding was dismissed and the costs were reserved. Orders were made for the filing of written submissions on the costs of the proceeding.

Background

The deceased died on 10 December 1994. The deceased was survived by the defendant, four of his five children and the three grandchildren of his deceased child. Probate of the deceased’s will dated 27 August 1976 was granted to the defendant on 1 March 1995. Pursuant to the will, the deceased left his residuary of the estate to his children equally with a gift over should any child predecease him leaving issue.

The plaintiff was married to the deceased’s daughter, Brenda Bellman. Mrs Bellman died on 5 September 2016. Probate of her will was granted to the plaintiff on 9 July 2018. The plaintiff claims that any interest in the estate of the deceased passed to the estate of the plaintiff.

The plaintiff commenced communicating with the defendant before obtaining a grant of probate in his wife’s estate. In November 2017, the plaintiff alleged that a sale of land owned by Thornton Caravan Park Pty Ltd (‘the company’) on 5 May 1998 ought to have resulted in a distribution of funds to his wife. In addition, he identified a $1 share in the company as an asset of the deceased’s estate which had not been distributed to the beneficiaries of the deceased’s estate. The plaintiff sought a wide range of documents relating to the estate and the company. Since the death of the deceased, the directors of the company are the defendant and two of…

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 Peters

Details

AGLC: Re Peters [2019] VSC 200
Case: [2019] VSC 200
Decision Date: 28 March 2019

CaseChat Overview and Summary

The case of Re Peters involved a dispute between the plaintiff and the defendant, the latter of whom was the trustee of the estate of the deceased, Mr. Peters. The plaintiff sought the removal of the defendant as trustee and the administration of accounts of the estate. The matter was heard in the Supreme Court of New South Wales. The plaintiff's claims were not founded on any proper basis, and the court was required to determine whether the circumstances warranted a special costs order.

The court considered the lack of a point of principle in the proceedings and the absence of any basis for the plaintiff's claims. The judge concluded that the plaintiff's actions were vexatious and without merit, and the defendant was not entitled to any special costs order. The court found that the plaintiff's claims were frivolous and without any reasonable prospect of success. The judge held that the defendant's costs should be paid out of the estate, but no special costs order would be made against the plaintiff.

The court dismissed the plaintiff's claims and ordered the plaintiff to pay the defendant's costs of the proceeding. The judge emphasised that the decision was not a reflection on the plaintiff's motives but rather a recognition of the lack of merit in the claims. The court found that there was no point of principle that warranted a special costs order against the plaintiff. The case serves as a reminder to litigants to ensure that their claims are well-founded and not vexatious.

Orders