Re Rush; Holt v Rush

[2020] VSC 412

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S CI 2017 04005

IN THE MATTER of the will and estate of DOROTHY MARY RUSH, deceased

-and-

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

MARY ANN HOLT	Plaintiff
v
PAUL VIVIAN RUSH and DAVID EDWARD RUSH (as executors of the will and trustees of the estate of the above named deceased)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	8 July 2020
CASE MAY BE CITED AS:	Re Rush; Holt v Rush
MEDIUM NEUTRAL CITATION:	[2020] VSC 412

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COSTS — Where plaintiff sought an administration account from executors of estate and their removal as executors — Proceeding compromised — Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 — Whether conduct of parties unreasonable — Where plaintiff substantially successful — Administration and Probate Act 1958 (Vic) ss 28, 34 — Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 1.14(2)(a).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr MT Flynn	Rigby Cooke Lawyers
For the Defendant	Mr ST Pitt	King & Collins

HER HONOUR:

Introduction

1. Dorothy Mary Rush (‘the deceased’) died on 2 July 2003.  She was survived by her four adult children, being the plaintiff, the defendants (‘Paul’ and ‘David’) and John Rush (‘John’).

1. Probate of the deceased’s last will was granted to the defendants on 28 June 2005.  An ‘equal one fourth share’ of the deceased’s estate was devised and bequeathed to each of her children.  At the time of death, the estate was estimated to have a value of $6,937,957 comprised chiefly of real property.

1. The plaintiff commenced this proceeding on 6 October 2017, seeking an account of the administration of the estate and removal of the defendants as executors of the estate.  John was notified of the proceeding but has not taken part in it.

1. The defendants were ordered to file administration accounts for the estate and subsequently the parties resolved the removal application.  The remaining issue to be determined is the costs of the proceeding. 

1. The plaintiff filed her submissions on 22 January 2020.  The defendants filed their submissions an 16 March 2020.  The plaintiff filed reply submissions on 3 April 2020.

Background

1. Probate of the deceased’s estate was granted to the defendants on 28 June 2005.  The inventory of assets filed with the application for a grant identifies that the estate consisted primarily of nine real properties.

1. A letter dated 28 April 2005, appearing to be signed by the plaintiff, defendants and John provides that Paul is engaged to prepare accounting and administration services to the estate.

1. In addition to the estate, the defendants, the plaintiff and John share interests in a number of entities referred to as the ‘Rush Group’.[1]

   [1]The plaintiff deposes that these include a partnership,…