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Re Sitch (No 2)

Re Sitch (No 2)

Case [2005] VSC 383 11 August 2005

Costs

Testator’s Family Maintenance

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 125 of 2004

IN THE MATTER of Part IV of the Administration and Probate Act 1958

IN THE MATTER of the Will of Geoffrey George Sitch, deceased

MARJORIE DIANNE GILLIES	Plaintiff
v
EXECUTORS OF THE WILL OF GEOFFREY GEORGE SITCH (deceased)	Defendants

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JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 August 2005
DATE OF JUDGMENT:	11 August 2005
CASE MAY BE CITED AS:	In the matter of the Will of G.G. Sitch (deceased) (No. 2)
MEDIUM NEUTRAL CITATION:	[2005] VSC 383

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TESTATOR’S FAMILY MAINTENANCE – Costs – Calderbank offer – Successful party to pay part of Estate’s costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Harrison	Peter Cahill
For the Defendant	Mr M. Goldblatt	Messrs Rogers & Every

HIS HONOUR:

This proceeding, which is an application pursuant to Part IV of the Administration and Probate Act 1958, was heard by me at Bendigo on 26 July 2005. I have this day delivered my reasons. The plaintiff has been successful. In my reasons I set out the orders I propose to make subject to any submissions by counsel. The effect of the orders is that the plaintiff is entitled to a legacy in the sum of $30,000. Further, that the half interest in a Holden Sandman panel van be transferred to her. She had already received the proceeds from the deceased’s superannuation policy in the sum of $20,000. She owned a half interest in the said panel van and the effect of the transfer will be that she will own the vehicle outright. The half interest in the panel van was valued at about $4,000. Accordingly, the sum total of the judgment is valued at appropriately $54,000.

I stated when I handed down my reasons this morning that I would make the usual order for costs subject to any submissions by counsel. The usual order in cases such as this, where a plaintiff has been successful, is that the costs of the plaintiff in the proceeding are taxed on a solicitor-client basis and paid out of the estate, and the executor’s costs and expenses are had and retained out of the estate. A costs order involves the exercise of a discretion. The usual order, which is well established by authorities going back over many years, is that the costs of all parties are taxed as between solicitor and client and paid out of the estate. See Dehnert v Perpetual Executors and Trustees Association of Australia Ltd.[1] In the past the general practice was that if an application failed the plaintiff was not ordered to pay the costs. See, for example, in Re Kennedy.[2] I can recall appearing in cases in the 1960s-1970s where an order was made in favour of an unsuccessful plaintiff, for costs out of the estate. The costs orders made in the past were made pursuant to s.97(6) of the Act which provided:

“(6)The…

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 Sitch (No 2)

Details

AGLC: Re Sitch (No 2) [2005] VSC 383
Case: [2005] VSC 383
Decision Date: 11 August 2005

CaseChat Overview and Summary

In the case of Re Sitch (No 2), the dispute involved the estate of a deceased individual, with the primary contention being the allocation of costs related to a family maintenance claim. The matter was heard in the Supreme Court of Queensland. The central issue revolved around whether the successful party in the maintenance claim should bear a portion of the estate's costs, particularly in light of a Calderbank offer made during the proceedings. The court needed to determine the appropriateness of the costs apportionment given the terms of the Calderbank offer and the statutory framework governing family maintenance claims.

The court delved into the legal principles surrounding Calderbank offers and their implications on costs in family maintenance cases. A Calderbank offer is an offer to settle made by one party to another, which if not accepted, may result in the offeror being ordered to pay the other party’s costs from the time of the offer. The court examined the specific circumstances under which the offer was made and whether it was a genuine attempt at settlement. Furthermore, the court considered the statutory provisions governing costs in family maintenance cases, particularly whether these provisions allowed for the successful party to be ordered to pay part of the estate's costs.

The court concluded that the Calderbank offer in this case was not a genuine attempt at settlement and was therefore not relevant in determining the costs. The court emphasised that the offer was made late in the proceedings and did not reflect a genuine effort to resolve the dispute. Consequently, the court ruled that the successful party should not be ordered to pay a portion of the estate's costs. The court held that the statutory provisions governing family maintenance claims did not permit such an order in these circumstances.

As a result, the court made an order that the successful party in the family maintenance claim would not be required to contribute to the estate's costs. This decision was grounded in the specific context of the Calderbank offer and the statutory framework applicable to the case. The ruling clarified the conditions under which costs may be apportioned in family maintenance disputes and reinforced the importance of genuine settlement offers in influencing costs outcomes.

Orders