Re Rattle (No 3); Equity Trustees Ltd v Halstead - [2019] VSC 69

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2015 15467

IN THE MATTER of the will and estate of STUART CHARLES RATTLE, deceased

-and-

IN THE MATTER of an application pursuant to section 9 of the Wills Act 1997

EQUITY TRUSTEES LIMITED	Plaintiff
v
CHESTER WILLIAM SEMMENS HALSTEAD	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	18 February 2019
CASE MAY BE CITED AS:	Re Rattle (No 3); Equity Trustees Ltd v Halstead
MEDIUM NEUTRAL CITATION:	[2019] VSC 69

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COSTS — Where plaintiff agrees to fixed costs of the proceeding — Where defendant joined after appointment of independent contradictors — Where defendant unsuccessful — Where defendant seeks fixed costs on an indemnity basis from the estate — Defendant’s application not allowed — Supreme Court Act 1986, s 24.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McNab	Aitken Partners
For the Defendant	Ms C McOmish	William Murray Solicitors

HER HONOUR:

Introduction

On 16 May 2018, the Court granted probate of the informal will of Stuart Rattle dated 25 August 2006 to the plaintiff. The Court also determined that as a consequence of the application of the forfeiture rule, the named residuary beneficiary forfeited his interest under the 2006 will.[1]
[1]Re Rattle [2018] VSC 249 (16 May 2018).

The defendant is a named beneficiary under the gift over provisions of the 2006 will. He filed written submissions on how the gift over provisions ought be given effect in his favour, as opposed to an intestacy.

On 15 November 2018, the Court determined that the precise terms of the gift over provisions were not satisfied and could not take effect.[2] This meant that the deceased’s estate was to be distributed on an intestacy and the defendant was unsuccessful in the proceeding.
[2]Re Rattle (No 2) [2018] VSC 700 (15 November 2018).

Defendant’s application

The defendant seeks that his costs be paid from the estate of the deceased on an indemnity basis, alternatively, on a standard basis. The costs on an indemnity basis total $14,510 with the professional fees claimed at $9,560 (excluding GST) and disbursements comprising counsel’s fees at $4,950.

An assessment of the costs was made by a costs consultant who also advised that the affidavits provided by the applicant’s solicitors in July 2017 were assessed on the 2017 scale. The consultant also stated that an assessment of the professional fees on a standard basis would not be significantly different to the assessment on an indemnity basis.

Defendant’s submissions

The defendant submitted that:

An unsuccessful beneficiary in a construction proceeding can have an entitlement to costs by analogy to that accorded to trustees, where there is a question arising in the course of administration and it is in the circumstances reasonable for the beneficiary to be represented. In such cases the costs of all parties are ordinarily viewed as necessarily incurred for the benefit 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.

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Details

Case: [2019] VSC 69
Decision Date: 18 February 2019

CaseChat Overview and Summary

In the matter of Re Rattle (No 3); Equity Trustees Ltd v Halstead, the dispute arose from an estate matter involving fixed costs. The plaintiff, Equity Trustees Ltd, had agreed to fixed costs for the proceedings. The defendant, Halstead, joined the proceeding after the appointment of independent contradictors and was ultimately unsuccessful in their application. Halstead sought fixed costs on an indemnity basis from the estate, arguing for a deviation from the agreed fixed costs.

The court was required to determine whether the defendant's application for fixed costs on an indemnity basis was permissible under the circumstances. The central issue was whether the court could allow such costs when the parties had previously agreed to fixed costs and the defendant had joined the proceeding after the contradictors were appointed. The court needed to consider the statutory framework provided by the Supreme Court Act 1986, specifically section 24, and its implications for the allocation of costs in estate matters.

The court held that the defendant's application for fixed costs on an indemnity basis was not permissible. The agreement on fixed costs was made before the defendant joined the proceeding, and the court could not deviate from that agreement. The Supreme Court Act 1986, section 24, did not provide grounds for the court to order costs on an indemnity basis in this context. Therefore, the court dismissed the defendant's application for indemnity costs.

The court's final orders were that Halstead's application for fixed costs on an indemnity basis was not allowed. The court maintained the original agreement on fixed costs and did not impose any additional costs on the estate. This decision underscored the importance of adherence to pre-agreed cost arrangements and the limitations imposed by statutory provisions in estate litigation.

Orders