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Re Steiner [No 2]

Re Steiner [No 2]

Case [2013] VSC 357 23 July 2013

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

PROBATE LIST

S CI 2013 01051

IN THE MATTER of the Will and Estate of ANITA GERTRUDE STEINER, deceased

IN THE MATTER of an application by the Executrices for approval pursuant to
r 54.02(2)(c)(i) of the Supreme Court (General Civil Procedure) Rules 2005

JULIE DAVIS and NICOLE BROWN (in their capacities as Executrices of the Will of the deceased)

Applicants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 April 2013
DATE OF JUDGMENT:	23 July 2013
CASE MAY BE CITED AS:	Re Steiner [No 2]
MEDIUM NEUTRAL CITATION:	[2013] VSC 357

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EXECUTORS AND ADMINISTRATORS – Application by executrices and trustees for approval of expenditure of legal costs on Family Court proceedings refused – Whether executrices/trustees entitled to their costs of that failed application – Supreme Court (General Civil Procedure) Rules 2005 rr 54.02, 63.26

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr S L Tatarka	Arnold Bloch Leibler

HER HONOUR:

On 15 May 2013, I published my reasons in this proceeding.[1] That was an application brought by the executrices of the estate of the deceased pursuant to r 54.02(2)(c)(i) of the Supreme Court (General Civil Procedure) Rules 2005 for an order approving two compromises and seeking approval of a decision to institute and maintain certain Family Court proceedings seeking parenting orders in respect of the daughter of the deceased. I refused the executrices’ application under r 54 in relation to the costs of the Family Law proceeding but permitted the applicants’ costs out of the estate in relation to the compromises.[2] The applicants have applied to the Court for an order that their costs of bringing the application for approval of expenditure of estate funds on the litigation in the Family Court be paid of the estate on a trustee basis. This judgment contains my reasons in relation to that request.
[1]Re Steiner [2013] VSC 232 (15 May 2013).
[2] Orders regarding the latter issue were made on 9 April 2013.

Factual background

The facts relevant to this application are set out in my reasons of 15 May 2013. I have reproduced the relevant parts as follows:

The deceased died on 12 November 2011. Probate of the deceased’s will dated 13 October 2011 was granted to the executrices on 11 January 2012. The executrices are a cousin and a best friend, respectively, of the deceased. In the Family Court proceeding, only the cousin is the applicant, she being a blood relative of the infant beneficiary.
The residuary of the estate is currently valued at $1 424 546 comprising two rental properties with a total value of $1 230 000. The rental income from the two properties, after agent’s fees but before tax, is approximately $3 600 per calendar month.
The beneficiary of the estate is the deceased’s daughter, Emma Sarina Frances Lemmens-Steiner, aged four years.
In a statement of wishes dated the same date as her will and addressed to her…

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 Steiner [No 2]

Details

AGLC: Re Steiner [No 2] [2013] VSC 357
Case: [2013] VSC 357
Decision Date: 23 July 2013

CaseChat Overview and Summary

In the case of Re Steiner [No 2], the executrices and trustees of a deceased estate applied to the Supreme Court for approval of expenditure of legal costs incurred in Family Court proceedings. The applicants sought to recover these costs from the estate. The legal issue before the court was whether the executrices and trustees were entitled to their costs of the failed application for approval of costs. The court had to consider the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2005.

The court considered the relevant rules and held that the executrices and trustees were not entitled to their costs of the failed application. The court noted that the rules provided that a party could only recover costs in proceedings if the party was successful. Given that the applicants had not succeeded in their application for approval of costs, they were not entitled to recover those costs from the estate. The court further held that the executrices and trustees had no entitlement to their costs of the failed application as they had not been successful in their application.

The court refused the application for approval of expenditure of legal costs. The court also held that the executrices and trustees were not entitled to their costs of the failed application. The court ordered that the executrices and trustees pay the costs of the failed application. The court further held that the executrices and trustees had no entitlement to their costs of the failed application as they had not been successful in their application. The court dismissed the application in its entirety.

Orders