Re Rush; Holt v Rush
[2020] VSC 412
•8 July 2020
| 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, two companies and two trusts.
A letter from Paul, as a ‘partner’, to the Commonwealth Bank of Australia dated March 2006, refers to the estate ‘winding up’ being well progressed. Reference is also made to work with property valuers and town planning consultants regarding the realisation of land reserved for public open space. That reference appears to relate to the estate land that later became the subject of a public acquisition compensation claim pursued by the executors (‘the PAO claim’).
A document titled ‘Briefing Notes Prepared 18th February: 2013’ discusses a plan for the PAO claim being conceived in 2011.
The plaintiff deposes that she sent a letter to her brothers on 23 October 2014. As exhibited, that letter refers to starting a conversation about the plaintiff exiting the Rush Group, the strained business and personal communications between the parties, the sale of an estate asset, and the plaintiff being excluded from the personal contents of the estate. In relation to the plaintiff being bought out of the Rush Group, reference is made to an independent arbitrator and the need for current valuations, as well as a specific timeframe.
The plaintiff then engaged the firm of Rigby Cooke to act on her behalf. Rigby Cooke wrote to the defendants on 8 July 2015 requesting financial statements of the estate and Rush Group. The defendants then engaged Mr Andrew Bell, solicitor, to represent them, and various proposals and negotiations concerning the estate and the Rush Group followed.
The plaintiff deposes that her relationship with the executors has ‘completely broken down’, and that her last social contact with them was in November 2015.
An email from Mr Bell to Rigby Cooke, sent 17 May 2016, refers to the PAO claim coming ‘to a head within the next four weeks’, the likely compensation being in the order of $1,200,000–$1,800,000 and associated costs of $600,000. The email appears to attach a number of documents and refers to the ‘financials for the group’ having been prepared on the basis of the plaintiff exiting in ‘February 2012’.
The plaintiff deposes that on 17 June 2016 she sent letters to David and John, requesting assistance to exit the Rush Group and to receive her interest in the estate. The exhibited letter to David refers to attaching the latest balance sheet and profit and loss statement for the partnership. The same day, Rigby Cooke sent a letter to Mr Bell. With reference to correspondence from Mr Bell, the letter discusses the plaintiff’s potential exit from the ‘partnership’ and an alleged loan or advance to the plaintiff from the partnership in around 2012. It also refers to:
(a) the plaintiff seeking an ‘expeditious finalisation’ of the estate;
(b) the possibility that the ‘advance’ was connected to an alleged distribution to the plaintiff, and that an associated partnership loan may have been paid out using proceeds from the estate;
(c) agreements by the executors and beneficiaries in 2005 for certain ‘in specie’ transfers to take place as interim distributions from the estate;
(d) the plaintiff, without her knowledge or authority, and first defendant, being credited through the partnership with some other interim distributions;
(e) obtaining valuations for the Rush Group and estate assets;
(f) an advance of compensation payment in relation to the PAO claim, which was understood to be finalised ‘soon’; and
(g) a spreadsheet for the estate provided by the first defendant’s lawyer on 17 May 2016.
The letter asserts that ‘the balance of the requested information’ should be made available, including ‘[a]ccounts/beneficiary distribution statements for the [e]state’ and notes that the plaintiff was seeking a resolution by 30 June 2016.
On 13 December 2016, Rigby Cooke requested by letter further financial details of the estate and the Rush Group. The letter also refers to Pitcher Partners being engaged to assist with the financial statements.
On 31 July 2017, Rigby Cooke wrote to the defendants requesting information regarding the administration of the estate, including a full account of their executorship. The letter contained a demand that if the requested information was not provided within 14 days then a proceeding seeking an account would be commenced.
A letter dated 2 October 2017, from Paul to Richmond Bennison discusses the PAO claim. It refers to options to further the claim, including the possibility of a ‘fresh start’ with a new application and property valuations, or alternatively, in light of the length of litigation and associated costs, the possibility of ‘calling it quits’ and paying back the $1,239,000 received in advance. The letter concludes that the offers of the relevant authority were considered insulting.
On 6 October 2017, the plaintiff commenced this proceeding seeking relief that included: that the defendants file and serve an accurate account of their administration of the estate; and further, or alternatively, that the defendants be removed as executors, and that the plaintiff, or alternatively, an independent person, be appointed as trustee of the estate. The plaintiff also sought that her costs of the application be paid personally by the defendants on an indemnity basis.
On 16 November 2017, the defendants were ordered to provide an account within 30 days and the summons was adjourned. Orders were also made that the defendants personally pay the plaintiff’s costs of and incidental to the application, to be taxed on the standard basis.
In his affidavit filed 27 December 2017, Paul exhibited an account of the estate (‘the first account’), which, among other things, identifies:
(a) in specie distributions of real property to John and David;
(b) funds of $1,228,859 credited beside the transaction detail ‘Richmaond & Benni’ [sic];
(c) fees charged by Paul of around $500,000 for the period 2005 to 2017;
(d) an alleged distribution to the plaintiff of $389,450 in February 2012 and smaller regular distributions thereafter;
(e) the only real property remaining in the estate as the property the subject of the PAO claim (stated to have a value of $165,000);
(f) uncollected portions of the estate including ‘reimbursement of costs compensation claim’ of unascertained value and a ‘Rush & Holt Loan Account’ of $371,104; and
(g) $528,966 cash held by the executors.
According to the plaintiff, prior to reading the first account she had no knowledge of having directly received any distributions from the estate.
The proceeding was adjourned again on 27 February 2018 and 18 April 2018. Orders on the latter date note in other matters that ‘in excess of 22 large folders of additional material have been forewarned to the plaintiff’s solicitors by the defendants’ solicitors and further time is required to review the additional material’.
The proceeding was first before the Court on 25 May 2018. Prior to this, the Court requested that further information be provided in relation to the estate and the conduct of the defendants. Mr Bell sent an email to the Court on the morning of the directions hearing, setting out some background to the PAO claim, which was said to be in the order of ‘several million dollars’, and events said to have occurred in 2011 concerning the plaintiff’s exit from the ‘estate and joint family assets’. The chief issue in dispute identified was whether the plaintiff had any further entitlement to the estate.
On 21 June 2018, the matter was adjourned again, to allow the parties further time to review material.
On 19 September 2018, by consent, the parties were referred to mediation. Mediation took place on 31 October 2018, and the plaintiff deposes that full accounts in relation to the estate were provided the following day. As the mediation was incomplete, it was adjourned to 4 December 2018.
The matter remained unresolved after the mediation of 4 December 2018, and the following day the Court adjourned the proceeding by consent. Another adjournment was ordered on 26 February 2019 due to a delay in arranging mediation, which then took place on 28 February 2019.
The mediation in February did not resolve the issues between the parties. On 6 March 2019, orders were made by consent that the defendants file further accounts and obtain valuations concerning the real property held by the estate, as well as those properties previously transferred.
On 29 March 2019, Paul filed an updated account of administration (‘the second account’). Among other things, the second account identifies a distribution to the plaintiff of $389,450 in February 2012, which a note refers to as a ‘beneficiary loan’ that was allocated to the plaintiff in the 2012 financial position prepared by Paul.
The proceeding was adjourned on 14 May 2019 to allow time for the filing of expert valuations and a further mediation. It was again adjourned on 20 June 2019. Mediation then took place on 25 June 2019.
At a directions hearing on 26 July 2019, counsel for the plaintiff requested that the matter be set down for trial and the Court raised the possibility of an independent administrator being appointed.
On 11 October 2019, the Court made orders on its own motion pursuant to r 1.14(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) and set the matter down for trial on 28 October 2019. In ‘other matters’, the Court raised concerns with the manner in which the parties and practitioners had conducted the proceeding and reminded the parties of the overarching purpose of the Civil Procedure Act 2010.
By a letter dated 16 October 2019, and without conceding any misconduct by the defendants, Mr Bell informed Rigby Cooke that the defendants were willing to resign as executors. The letter included the proposal that each party bear their own costs.
In an email to the parties dated 9 December 2019 concerning the appointment of an administrator, the Court noted the matters to be completed to finalise the estate as including finalisation of the PAO claim, adjustment of unequal distributions to beneficiaries, review of the cost and expenses incurred by the executors, and ascertaining the residue. By email to the Court dated 12 December 2019, Mr Bell noted with reference to those four points that the distributions to the beneficiaries need to be analysed and assessed, without the presumption that they were unequal. He also referred to the books and records of the estate being ‘voluminous’, with the PAO claim documents alone comprising over 40,000 pages.
On 19 December 2019, the Court made orders by consent that the defendants be removed as executors and that an independent administrator be appointed.
Applicable principles
The applicable principles are not in dispute.[2] Costs of and incidental to all matters in the Court are at the discretion of the Court, unless otherwise provided by an Act or the Rules.[3] This discretion ‘must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation’.[4] Guiding principles exist to promote consistency and avoid arbitrariness,[5] and the central principle is to make an order that is fair and just between the parties in the circumstances of each case.[6]
[2]The parties agreed that the applicable law was set out in Seng Hpa v Walker [2017] VSC 320. The Court of Appeal decision Zhao v Suzhou Haishun Investment Management Co Ltd [2020] VSCA 34 was handed down after the date of the plaintiff’s written submissions, but before that of the defendant’s submissions and plaintiff’s reply.
[3]Supreme Court Act 1986 (Vic) s 24.
[4]Northern Territory v Sangare (2019) 265 CLR 164, 172 [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).
[5]Ibid, 173 [24]; Diakou v Rouse [2019] VSCA 199, [48] (Kyrou, McLeish, Emerton JJA).
[6]Earnshaw v Loy (No 2) [1959] VR 252, 253 (Scholl J); Seng Hpa v Walker [2017] VSC 320, [76] (McMillan J).
Ordinarily, ‘costs follow the event’, such that a successful party is awarded costs in their favour.[7] Where there has been no hearing on the merits, ‘a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order’.[8] Where parties have acted reasonably in such circumstances, the Court usually makes no order as to costs.[9]
[7]Oshlack v Richmond River Council (1998) 193 CLR 72, 97 (McHugh J).
[8]Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, 624 (McHugh J) (‘Lai Qin’).
[9]Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681, 688 [30] (Payne JA).
At times, however, costs are awarded to parties even though the proceeding has settled. In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin, McHugh J broadly recognised two circumstances in which such a course may be adopted: first, where the Court is able to conclude that a party has acted so unreasonably that the other party should obtain their costs; and second, where a judge is confident that one party was almost certain to have succeeded if the matter had gone to trial.[10] Ward CJ in Eq has associated the latter category with cases where one party effectively capitulates, or where the Court is satisfied that one party has had a substantial victory and the other a substantial loss.[11] In Zhao v Suzhou Haishun Investment Management Co Ltd, the Court of Appeal accepted capitulation as a basis for an award of costs, although it was also acknowledged that each case will depend upon its own facts.[12]
[10]Lai Qin (n 8).
[11]Jun International Property Pty Ltd v Fullerton Property Pty Ltd [2019] NSWSC 450, [53], citing, inter alia, Lai Qin (n 8) 624–5 and Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack [2003] NSWCA 302, [5] (Davies AJA, Mason P and Meagher JA agreeing).
[12][2020] VSCA 34.
In exercising the discretion to award costs where there has been no hearing on the merits, it is inappropriate for the Court to conduct a ‘hypothetical action’,[13] and analysis should proceed upon facts that are uncontroversial, rather than the weighing up of extensive affidavit material.[14]
[13]Lai Qin (n 8).
[14]Nichols v NFS Agribusiness Pty Ltd (n 9) 688, 690–1.
While the usual order is for costs on the standard basis, in special circumstances the Court is able to award indemnity costs.[15] The principles concerning whether costs should be awarded on such a basis are set out in Ugly Tribe Co Pty Ltd v Sikola,[16] Colgate-Palmolive Co v Cussons Pty Ltd,[17] and Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3).[18]
[15]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.28.
[16][2001] VSC 189, [7] (Harper J).
[17](1993) 46 FCR 225, 232–3 (Sheppard J).
[18][2012] VSC 399, [11]–[19] (Croft J).
Submissions
Plaintiff’s submissions
The plaintiff acknowledges that on 16 November 2017 the Court made costs orders regarding the application for an account, which she does not seek to revisit.
Relying upon Seng Hpa v Walker,[19] the plaintiff asserts that she had a ‘substantial victory’. The signed consent orders forwarded to the Court on 24 October 2019 provided for the very thing that she sought in commencing the proceeding. Although extensive negotiations took place, that fact does not detract from her success. Insofar as the defendants submit that mediation extended beyond issues surrounding the estate, the plaintiff submits that evidence of parties’ discussions in court-ordered mediation is inadmissible.[20] In any event, ‘the resolution of disputes about the other entities’ is said to be relevant to the estate dispute, and the associated costs incidental to resolution of the proceeding.
[19][2017] VSC 320, [81] (McMillan J).
[20]Forsyth v Sinclair (No 2) (2010) 28 VR 635, 638–9 (Neave and Redlich JJA and Habersberger AJA).
Regarding the merits of the proceeding, the plaintiff contends that accounts were first requested in 2015 and, as they should already have existed, their provision should not have been a significant task. The failure to provide accounts, when viewed against the breakdown in the relationship between the parties, may have been sufficient grounds for the removal of the executor. Moreover, at the hearing on 26 July 2019, the Court suggested to the parties that the matter might be better served by the appointment of an independent administrator, but the defendants did not take up the suggestion.
The plaintiff also submits that her costs should be assessed on an indemnity basis, as the defendants breached a fundamental duty by failing repeatedly to provide her with the accounts that she requested over several years. Additionally, they have acted unreasonably by defending their removal despite the length of time it has taken to administer the estate and ascertain the residue. In this regard, the plaintiff contends that the will is simple, yet administration remains incomplete 14 years after the grant of probate was made by the Court.[21]
Defendants’ submissions
[21]For completeness, it is noted that the plaintiff made a number of submissions asserting that the defendants’ costs should not come out of the estate. However, the defendants did not contend that they should be indemnified as such.
The defendants submit that the parties should bear their own costs. They submit that it would be unfair and unreasonable to be burdened with the costs of the proceeding, beyond those relating to the production of accounts.
According to the defendants, the plaintiff merely ‘started a conversation’ in 2014 about exiting the Rush Group. Similarly, the letter of Rigby Cooke in 2015 sought financial information surrounding all of the relevant entities and the estate. Steps were taken in this regard and, on any view, it was going to be a significant task. The estate and Rush Group were interlinked, such that it is said to be an oversimplification of the plaintiff to refer to the will as ‘simple’.
The defendants emphasise that the proceeding was adjourned by consent for mediations, each aimed at the plaintiff exiting the Rush Group, not just the estate — that is, mediation dealt with issues much broader than the administration of the estate and the defendant’s conduct as executors. An enormous number of documents in respect of the whole Rush Group was produced, and independent valuations of the Rush Group entities were obtained. In effect, after the provision of accounts, the proceeding became a ‘convenient vehicle’ for the parties to negotiate the plaintiff’s exit from the Rush Group, which necessitated unwinding decades of farming operations across several entities.
It is submitted that the plaintiff has not separated out her costs of the various parts of the proceeding and, in the circumstances, it would be unjust, unfair and inappropriate to order all of the costs of those steps against the defendants. In this regard, the Court is said to be ‘flying blind’ as to the content of the mediation, and should not penalise the defendant without such knowledge.
The defendants assert that the Court is not well placed to determine the reasonableness of the defendants’ conduct in defending the application because of the ‘veil of confidentiality’ at mediation.
Similarly, it is submitted that the appointment of an independent administrator should not be viewed as a victory for the plaintiff, as it followed extensive negotiations dealing with issues much broader than the administration of the estate. The defendants also contend that there is no material on which the Court could conclude that the plaintiff was certain to have succeeded in her removal application. There is no evidence that the defendants mismanaged the estate, and the plaintiff is said to have benefited substantially from the Rush Group during the estate’s administration. If she felt aggrieved by the administration of the estate and the Rush Group, the plaintiff could have brought an application sooner, or otherwise used her position within the Rush Group entities to make enquiries.
Consideration
At the outset it is noted that on 16 November 2017 the Court ordered that the defendants personally pay the plaintiff’s costs of the application, taxed on a standard basis. The parties agree that those orders were made regarding the application for account. What remains to be determined is the costs concerning the application for removal.
Evidence of the content of mediation
As a preliminary point, it is necessary to address the defendants’ submissions insofar as they relate to the content of mediation. In Forsyth v Sinclair (No 2), the Court of Appeal discussed the propriety of legal representatives disclosing what had occurred at mediation.[22] It noted that s 131(1) of the Evidence Act 2008 precludes evidence being adduced of a communication made between parties in a dispute in connection with an attempt to negotiate a settlement. While an exception to that subsection exists where the communication is relevant to determining liability for costs,[23] the generality of the exception gives way to the specificity of s 24A of the Supreme Court Act 1986. That provision states that, where the Court refers a proceeding to mediation, unless the parties agree otherwise in writing, no evidence shall be admitted of anything said or done by any person at mediation.
[22]Forsyth v Sinclair (No 2) (n 20).
[23]Evidence Act 2008 (Vic) s 131(2)(h).
In Pinto v Kinkela, it was submitted generally that, in relation to the issue of costs, ‘an inability to refer to the substance of the mediation may render incomplete the relevant history of events, thereby creating an unsafe basis for the ultimate decision and potential "unfairness" to a particular party’.[24] This argument was rejected on the basis that the legislature considered the benefits of alternative dispute resolution to outweigh any disadvantage to a particular litigant. Moreover, the parties were on notice that their conduct would be viewed without recourse to any matter that transpired in mediation, and could adapt their conduct of the claim accordingly.[25]
[24][2003] WASC 126, [11] (Commissioner Johnson QC).
[25]Ibid [12]. See also Lukies v Ripley (No 2) (1994) 35 NSWLR 283, 286–7 (Young J); Jermyn v Spargos Mining NL [2001] WASCA 149, [2]–[3] (Anderson J, Wheeler J agreeing).
In the current circumstances, the defendants have identified the content of mediation and raised a similar argument regarding the consequences if the Court is precluded from considering such content. The Court ordered the mediation and the date for its conclusion was extended by orders on a number of occasions. The plaintiff disputes the admissibility of evidence surrounding the content of the mediation rather than providing written consent. On the basis of Forsyth v Sinclair, evidence of what was said or done at mediation is inadmissible. Further, the Court agrees with the comments in Pinto v Kinkela that the legislature has accepted that there are limits on the ability of the Court to review the conduct of the parties in mediation, and it is open to the parties to adjust their conduct accordingly.
Did the plaintiff act reasonably in commencing and pursuing the proceeding?
The plaintiff acted reasonably in commencing the proceeding after she had previously requested, then demanded, information from the defendants. While it is apparent from the correspondence before the Court that the plaintiff was aware of some dealings with the estate assets, and was provided with some financial information, the defendants did not dispute that they had never provided the plaintiff with a full account of administration. Moreover, it is apparent from Rigby Cooke’s letter of 17 June 2016 that the information that the plaintiff was provided with, or was able to access, raised concerns as to the administration of the estate.
It was also reasonable for the plaintiff to continue to pursue the proceeding after receiving the first account. The first account identifies fees charged by Paul that raise concern for more investigation. That fact, combined with the outstanding PAO claim, an administration lasting 14 years and personal conflict between the parties, meant that the plaintiff was justified in continuing to seek the removal of the defendants. Removal of an executor is a serious matter that the Court approaches with caution.[26] However, the paramount concerns are the welfare of the beneficiaries and protection of the interests of the estate.[27] Based on the uncontentious facts before the Court and the applicable law, the plaintiff’s conduct in maintaining the proceeding was reasonable. This is so despite the costs involved in appointing an independent administrator unfamiliar with the estate.
[26]Dimos v Skaftouros (2004) 9 VR 584; Monty Financial Services Ltd v Delmo [1996] 1 VR 65.
[27]Ibid.
Although the extended period of adjournments and negotiation of the matter after the first account are of concern, it was reasonable to seek further information surrounding the estate’s administration and accurate valuations, and the defendants provided the plaintiff with a considerable volume of material. The mediation took place over a period of eight months, after which the plaintiff sought to have the proceeding set down for trial. On the whole, this was a reasonable course in the context of issues that had initially been raised in 2015.
Did the defendants act reasonably in defending the proceeding?
Save for the first account, the second account, and filed property valuations, the defendants provided little evidence. Their submissions concerning the reasonableness of continuing to defend the proceeding appear to relate to: the size and complexity of the task at hand; the veil of confidentiality surrounding what was agreed at mediation; and the alternative avenues that the plaintiff could have pursued.
As to the first point, the correspondence indicates that steps were taken in 2016 regarding finalisation of the PAO claim and administration of the estate, and the plaintiff’s potential exit from the Rush Group and obtaining associated valuations. The issues and complexities now relied upon were known to the defendants for years, yet in that time limited progress appears to be have been made. Similarly, although the beneficiaries of the estate may have agreed to pursue the PAO claim, Paul’s letter of October 2017 raises the concern that, despite the time and funds invested, an option being considered was to ‘call it quits’ and return the advance compensation payment received by the estate. It is also of note that the estate itself primarily bequeathed real property to the beneficiaries, such that the financial links between the estate and the Rush Group appear to have occurred under the administration of the defendants, one of whom is an accountant. Against such a background, it is inapposite for the defendants to continue to point to the complexities surrounding the estate and Rush Group as justifying a delay in the administration of the estate and the production of a significant amount of documents during the proceeding.
Although it is evident from the plaintiff’s exhibited correspondence that she was broadly seeking removal from the Rush Group in addition to having the estate finalised, the issues were not new, and the Court does not accept that their claimed complexity justified the protracted defence of the originating motion.
In relation to the defendants’ submission that the Court is not ‘well placed’ to consider how reasonable it was to defend the proceeding beyond the orders of 16 November 2017, from the Court’s viewpoint:
(a) the issues at hand, including the delay, resolution of the PAO claim and the asserted ‘interchanging’ of the estate and Rush Group assets had been agitated between the parties over a number of years;
(b) the first account raised further concerns surrounding the estate’s administration, including Paul’s fees;
(c) there is personal conflict between the parties; and
(d) as executors, the defendants had duties concerning the estate, distinct from broader issues surrounding the plaintiff’s exit from the Rush Group.
In those circumstances, it was unreasonable to continue to attempt to defend the proceeding. To suggest that the spectre of what was achieved through negotiations prevents this conclusion is difficult to accept both in principle and practice. As to the former, should such an argument be accepted, the ‘unknown’ outcome of mediation could potentially always trump the reality of what is before the Court. In relation to the latter, although the time and cost of a trial has been avoided, it is apparent that the outcome of the extended mediations has left much to do in the administration of the estate. As such, it appears questionable to suggest that the unknown outcome negotiated by the defendants, in their position as executors, could form a basis to conclude that their conduct was reasonable.
The submission that the plaintiff could have brought the proceeding sooner, or otherwise could have used her roles in the Rush Group to obtain the outcome she sought in the proceeding, is rejected. As noted, the plaintiff first raised her concerns in 2015, and it is not apparent that, had she pursued avenues open to her via the Rush Group, she would have avoided the difficulties in accessing financial records that she has encountered in commencing the proceeding, or understood the administration of the estate any better.
On the whole, the defendants’ conduct in continuing to defend the proceeding and maintain control of the estate despite the length of the administration, uncertainties surrounding the PAO claim, conflict with the plaintiff, and the ingrained nature of the dispute, was so unreasonable that the defendants should pay the plaintiff’s costs.
However, it is not accepted that indemnity costs should be awarded. The defendants sought valuations and provided documents when ordered, and it should be acknowledged that, in settling, they avoided the cost of a trial.
Would the plaintiff certainly have succeeded?
In light of the preceding conclusion, it is strictly unnecessary to consider an alternative basis for the award of costs. However, for completeness, the parties’ additional submissions will be addressed.
The Court cannot conduct a hypothetical trial and attempt to resolve questions of disputed fact. Based on the uncontentious evidence before the Court though, namely, the length of the administration, the conflict between the parties, and the issues identified in the first account, prima facie, the plaintiff had a strong case for the removal of the defendants. The plaintiff also substantially succeeded in achieving all that she sought through commencing the proceeding. Again, the suggestion by the defendants that what was agreed at mediation prevents this conclusion is rejected. In the Court’s view, ‘success’ is to be approached by considering the relief sought at the commencement of the proceeding against the settlement achieved.[28] Here, while the overall settlement agreement may have involved more than what is before the Court, a sufficient nexus exists between the orders eventually consented to and the relief initially sought by the plaintiff.
[28]See, eg, Hall v Hall (No 2) [2019] VSC 60, [34] (McDonald J).
In any event, the circumstances also appear to fall within the scope of cases where one party capitulates after litigating for some time. It is evident that the parties did not approach the Court after a successful mediation. Rather, the Court of its own motion set the matter down for trial and, within two weeks of the scheduled commencement of the hearing, the defendants informed the plaintiff that they were willing to consent to the relief sought.
What does the overall justice of the case require?
As observed, the orders made on 16 November 2017 deal with the application for an administration account. What remains to be finalised are the costs concerning the removal application. The overall justice of the case requires that the defendants personally pay the plaintiffs’ costs of the remainder of the proceeding, assessed on the standard basis.
Orders
The Court orders that the defendants personally pay the plaintiff’s costs of and incidental to the removal application assessed on the standard basis.
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