Legal Research
Cases
Re Schlink; Keane v Corns (No 2)

Re Schlink; Keane v Corns (No 2)

Case [2020] VSC 417 9 July 2020

Costs

Family Provision Claim

Family Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2018 02204

IN THE MATTER of the estate of CARL ALBERT JOHN SCHLINK (also known as CARL JACKSON), deceased
LEE ANNE KEANE	Plaintiff
v
LOIS ALDA CORNS (who is sued in her capacity as the executor of the estate of the abovenamed deceased)	Defendant

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	9 July 2020
CASE MAY BE CITED AS:	Re Schlink; Keane v Corns (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 417

---

COSTS — Where plaintiff unsuccessful in family provision claim — Where plaintiff seeks costs of the proceeding from the estate, alternatively, parties bear their own costs — Where estate has insufficient cash reserves to meet the costs of the parties — Whether plaintiff’s rejection of offer was unreasonable — No point of principle.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr JD Catlin	Armstrong Legal
For the Defendant	Mr RC Wells	Jansen, Walsh & Grace

HER HONOUR:

Introduction

On 15 April 2020, the Court delivered reasons for judgment on the plaintiff’s claim for further provision from the estate of the deceased.[1] The plaintiff’s claim was dismissed.
[1]Re Schlink; Keane v Corns [2020] VSC 180.

The plaintiff is the deceased’s adult daughter. The defendant is the executor of the estate and was the deceased’s partner of 20 years. Pursuant to his will, the deceased bequeathed a legacy of $50,000 to the plaintiff and left the residue of his estate to the defendant.

The estate comprises the home of the deceased and the defendant in Boronia (‘the Boronia property’) and a share portfolio valued at trial at $118,303.53. At trial, the value of the Boronia property was determined to be between $650,000 and $715,000. The liabilities of the estate principally comprised estate expenses and legal fees of the proceeding. The defendant has personally funded the liabilities by providing a loan of $86,626 to the estate. The legacy of $50,000 to the plaintiff has not yet been paid pending the outcome of the proceeding. In order to pay the legacy, the defendant proposed to fund personally any shortfall between the net value of the share portfolio and the $50,000. After payment of the legacy and the loan, the net value of the estate would be between approximately $631,000 and $696,000. Since these figures were provided, further liabilities for legal costs have been incurred by the estate.

Costs of the proceeding

The parties were unable to agree on the costs of the proceeding.

The plaintiff seeks an order that her costs be paid from the estate on the standard basis and there be no order as to the costs of the defendant, alternatively, an order that the parties bear their own costs personally.

The defendant seeks an order that the plaintiff pay the her costs on the standard basis up to and including 19 February 2020, being the date of a

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.

Continue reading Re Schlink; Keane v Corns (No 2)

Details

AGLC: Re Schlink; Keane v Corns (No 2) [2020] VSC 417
Case: [2020] VSC 417
Decision Date: 9 July 2020

CaseChat Overview and Summary

The case before the court involved a family provision claim brought by the plaintiff against the estate of the deceased, with the defendant serving as the executor of the estate. The plaintiff sought either costs of the proceeding from the estate or that the parties bear their own costs. The estate, however, lacked sufficient cash reserves to cover the costs of the proceeding. The central issue for the court was whether the plaintiff’s rejection of an offer from the estate to pay their costs was unreasonable, given the estate’s financial constraints.

The court considered whether the rejection constituted a point of principle that warranted the plaintiff receiving costs from the estate. After careful deliberation, the court determined that the plaintiff's decision to reject the offer was not unreasonable. It was held that there was no point of principle involved in the rejection, which meant that the plaintiff was not entitled to costs from the estate. Consequently, the plaintiff and the defendant were to bear their own costs.

In light of the court's findings, it was ordered that the parties bear their own costs of the proceeding. The plaintiff was not entitled to any costs from the estate, and there was no basis for the court to exercise its discretion to award costs against the estate. The decision underscored the importance of considering the financial realities of the estate when assessing claims for costs.

Orders