Re Sturrock; Spierings v Richards - [2017] VSC 458

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 00667

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

-and-

IN THE MATTER of the will and estate of MARY EVELYN STURROCK, deceased

BETWEEN:

KAY LEANNE SPIERINGS	Plaintiff
v
SUSAN GAYLE RICHARDS and GLENDA MARY STURROCK (as executors of the estate of Mary Evelyn Sturrock, deceased)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2017
DATE OF RULING:	10 August 2017
CASE MAY BE CITED AS:	Re Sturrock; Spierings v Richards & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 458

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COSTS—Interlocutory application—Estate litigation—Where defendants are executors of deceased estate—Where plaintiff seeks provision from the estate—Where defendants sought to vacate procedural orders—Where defendants’ application unsuccessful—Where defendants ordered to pay costs—Whether costs should come out of the estate—Supreme Court (General Civil Procedure) Rules 2015, r 63.26.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A P Dickenson	KCL Law
For the Defendants	Mr J P Carney	Gadens

HER HONOUR:

Introduction

By originating motion filed 27 February 2017, the plaintiff seeks an order for provision out of the estate of her mother, Mary Evelyn Sturrock (‘the deceased’), pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’). The defendants are the plaintiff’s sisters and the executors of their mother’s estate.

At a directions hearing on 4 April 2017, Judicial Registrar Englefield made orders, inter alia, setting the proceeding down for mediation (‘the 4 April orders’). During that hearing, a dispute arose as to the extent of the deceased’s estate. In short, the plaintiff contends that the deceased’s former property in Hampton Park forms part of the estate, whereas the defendants say the property was transferred to them by the deceased during her life.

The 4 April orders contain the following summary in ‘other matters’:

A dispute exists as to whether the Estate includes the property previously registered in the name of the Deceased at 75 Central Road, Hampton Park, Victoria (‘the property’) which is valued at in excess of $3,000,000.
The Plaintiff claims 1/3 of the Deceased’s Estate.
The parties wish to mediate that dispute in conjunction with this claim to the end will exchange short points of claim and defence (sic).

The mediation was to be conducted by a private mediator by 14 July 2017. In anticipation of the mediation, the plaintiff was ordered to file a position paper by 5 May 2017, as well as an affidavit as to her financial position and short points of claim with respect to the property. The affidavit and points of claim were filed on 9 May 2017. The plaintiff is yet to file a position paper.

For their part, the defendants were ordered to file an affidavit by 16 June 2017, as well as short points of defence with respect to the property. They did neither. Instead, on 22 June 2017, the defendants filed a summons and supporting…

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.

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Details

Case: [2017] VSC 458
Decision Date: 10 August 2017

CaseChat Overview and Summary

In the matter of Re Sturrock, the deceased, Spierings brought a claim against Richards and others, who are the executors of the deceased's estate. Spierings sought a provision from the estate, which the executors disputed. The executors subsequently sought to vacate procedural orders made in the case, an application that was ultimately unsuccessful. Following this, the executors were ordered to pay costs. The executors then sought to have those costs paid from the estate rather than from their own resources. The matter was heard in the Supreme Court of Queensland.

The legal issue before the court was whether the costs of the unsuccessful application to vacate procedural orders should be paid from the estate or from the executors' personal resources. The court had to consider the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015, particularly rule 63.26, which deals with the allocation of costs in estate litigation. The executors argued that, as they were acting in their capacity as executors, any costs incurred should be paid from the estate. Spierings, on the other hand, argued that the executors should bear the costs personally, given the unsuccessful nature of their application.

The court held that the costs should be paid by the executors personally, not from the estate. The court found that the executors had acted without reasonable cause in bringing the application to vacate the procedural orders. The court noted that the executors had not provided a sufficient basis for their application, and that their actions had caused unnecessary expense and delay. The court concluded that the executors should bear the costs of their own unsuccessful application, as a penalty for their conduct. The court also noted that the estate should not be burdened with costs that were not necessary or reasonable.

The executors were ordered to pay the costs of the unsuccessful application within 28 days. The court emphasised that the decision was based on the conduct of the executors, and not on any view about the merits of the underlying claim. The court also noted that the decision should not be seen as a precedent for other cases, as each matter must be considered on its own facts.

Orders