| 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
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’).
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.
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.
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.
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
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.
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.
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,…
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- AGLC
- Re Rush; Holt v Rush [2020] VSC 412
- Case
- [2020] VSC 412
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to decide included whether the plaintiff's conduct was unreasonable, and if the defendants should be ordered to pay the plaintiff's costs. The court considered the principles in Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622, and the relevant provisions of the Administration and Probate Act 1958 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The court needed to balance the competing interests of the parties and determine whether the plaintiff's conduct was unreasonable, and whether the defendants should be ordered to pay the plaintiff's costs.
The court found that the plaintiff's conduct was not unreasonable, and that the defendants should be ordered to pay the plaintiff's costs of and incidental to the removal application. The court assessed the costs on the standard basis, in accordance with the relevant legislation and court rules. The court concluded that the plaintiff was substantially successful in their claim, and that the defendants should be ordered to pay the plaintiff's costs.
The court ordered that the defendants personally pay the plaintiff's costs of and incidental to the removal application assessed on the standard basis. The court found that the plaintiff's conduct was not unreasonable, and that the defendants should be ordered to pay the plaintiff's costs in accordance with the relevant legislation and court rules. The court's decision was based on a careful consideration of the principles in Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622, and the relevant provisions of the Administration and Probate Act 1958 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
Orders
Orders of the court
The Court orders that the defendants personally pay the plaintiff’s costs of and incidental to the removal application assessed on the standard basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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