Re Ruschinek; Richards v Tiernan - [2017] VSC 497

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2014 05202

EVA RICHARDS	Plaintiff
v
DAMIEN TIERNAN (who is sued as executor of the will of the deceased, Schaja Ruschinek)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	25 August 2017
CASE MAY BE CITED AS:	Re Ruschinek; Richards v Tiernan
MEDIUM NEUTRAL CITATION:	[2017] VSC 497

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COSTS – Where plaintiff and defendant seek costs from a non-party – Where non-party from a related proceeding acted unreasonably and caused costs and delay in this proceeding –Supreme Court (General Civil Procedure Rules) 2015, r 63.02 – Bischof v Adams [1992] 2 VR 198 – Re Bonlac Foods Ltd [2001] VSC 75.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R B Phillips	Featherbys Lawyers
For the Defendant	Mr J L Smith	Strongman & Crouch
For the Non-party	Mr T Mah	Moisson Lawyers

HER HONOUR:

Schaja Ruschinek died on 31 January 2008 (‘the deceased’). On 19 September 2008, probate of her will dated 10 August 1998 was granted to the defendant. Pursuant to the deceased’s will, the deceased made provision for her two adult children, the plaintiff and Berek Ruschinek (‘Mr Ruschinek’).

On 17 November 2008, Mr Ruschinek issued a proceeding seeking revocation of the grant of probate on the grounds that the deceased lacked testamentary capacity. On 3 June 2009, Mr Ruschinek issued a second proceeding seeking further provision from the estate, pursuant to Part IV of the Administration and Probate Act 1958. In April 2013, both proceedings were compromised. The defendant continued to administer the estate of the deceased in accordance with the terms of the compromise.

The administration proceeding

An outstanding issue was the transfer of certain estate properties to the plaintiff and Mr Ruschinek. On 26 September 2014, the plaintiff issued this proceeding seeking orders for the filing of an administration account and finalisation of the administration of the estate (‘the administration proceeding’).

On 27 October 2014, orders were made in the administration proceeding for the defendant to file an administration account, transfer relevant properties to the plaintiff and reserving the costs of the proceeding.

On 17 November 2014, the defendant filed an administration account for the estate of the deceased.

Mr Ruschinek’s related proceeding

On 27 November 2014, Mr Ruschinek issued a proceeding against the defendant alleging various deficiencies in his administration of the estate of the deceased (‘the related proceeding’).

The administration proceeding and the related proceeding were listed for directions on 5 December 2014. From that date, both proceedings were listed for directions in the Trusts, Equity and Probate List. Given that the administration proceeding was resolved save for the costs, it was adjourned at each directions hearing to the next directions hearing of the related proceeding. It continued to be listed concurrently with the related proceeding until 9 October 2015 when it was adjourned sine die pending the determination 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: [2017] VSC 497
Decision Date: 25 August 2017

CaseChat Overview and Summary

In the case of Re Ruschinek; Richards v Tiernan, the parties involved were Richards and Tiernan, who were engaged in a dispute, with Richards seeking costs from Tiernan. The dispute extended to a non-party who had acted unreasonably in a related proceeding, causing costs and delays in the current case. The matter was heard in the Supreme Court, where the legal issues centred around the allocation of costs incurred due to the unreasonable actions of the non-party. The court had to determine whether the non-party's conduct warranted an order for costs under the Supreme Court (General Civil Procedure Rules) 2015, r 63.02, and if so, how these costs should be apportioned between the parties.

The court examined the precedents set by Bischof v Adams [1992] 2 VR 198 and Re Bonlac Foods Ltd [2001] VSC 75, which provide guidance on the circumstances under which a non-party's unreasonable actions can lead to costs being awarded against the party who benefits from such conduct. In applying these cases, the court assessed whether the non-party's actions were indeed unreasonable and whether they directly contributed to the costs and delays experienced in the current proceedings. The court also considered the extent to which each party was responsible for the non-party's conduct and whether any party had acted unreasonably in relation to the non-party.

After careful consideration, the court concluded that the non-party's actions were unreasonable and had indeed caused significant costs and delays. The court ruled that the costs incurred due to the non-party's conduct should be apportioned between the parties, with the party benefiting from the non-party's actions bearing a greater share of the costs. The court's decision was based on the principle that parties should not be allowed to benefit from the unreasonable actions of others, and it sought to ensure that the costs were fairly distributed. The court ordered that specific amounts be paid by the parties in proportion to their responsibility for the non-party's conduct.

Orders