Re Tarquinio (No 2)
[2019] VSC 244
•12 April 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S CI 2018 01038
| JOHN BECKWITH (AS ADMINISTRATOR OF MARIA TARQUINIO, PROPOSITUS) | Plaintiff |
| v | |
| PETER TARQUINIO | Defendant |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 12 April 2019 |
CASE MAY BE CITED AS: | Re Tarquinio (No 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 244 |
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COSTS – Proposed statutory will not made – Costs sought against administrator of propositus, the plaintiff’s solicitors and a beneficiary – Disinterested administrator – No order as to costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | B Guzzo | Cavoli & Co |
| For the Defendant | W F Gillies | R B Legal |
HIS HONOUR:
On 22 March 2018, the plaintiff filed an application seeking an order for a statutory will to be made pursuant to s 21 of the Wills Act 1997 (the Act) on behalf of Maria Tarquinio (Mrs Tarquinio). The plaintiff was Mrs Tarquinio’s administrator appointed by the Victorian Civil and Administrative Tribunal.
In reasons for judgment delivered on 15 March 2019,[1] I dismissed the plaintiff’s application. I directed the parties to submit any short submissions on costs. Submissions were filed by the parties on 29 March 2019.
[1][2019] VSC 164.
Although he successfully opposed the plaintiff’s claim for a statutory will, the defendant has not sought any order for the payment of his costs. This may reflect the defendant’s view that Mrs Tarquinio, his mother, is without assets. The Court will order that there be no order as to the defendant’s costs.[2]
[2]This also accords with the primary positon submitted by the plaintiff in respect of the defendant’s costs.
The plaintiff’s costs
The remaining controversy relates to the plaintiff’s costs. The plaintiff submits that it is appropriate to order that there be no order as to the plaintiff’s costs. Although the defendant has not identified in terms the orders he seeks in relation to the plaintiff’s costs, his positon is encapsulated in the following two paragraphs of his submissions:
The affidavit of Robert Tarquinio is self-serving. No proper evidence was produced to support it. In short, he and John Beckwith together with his solicitors should be jointly and severally responsible for the costs of the plaintiff.
The plaintiff should not have to pay the costs of this application from her estate. The costs should be borne primarily by her advisors, her administrators and her son Robert.
In support of this submission, the defendant contends that, when issued, the plaintiff’s application was defective because it did not comply with r 17.05 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 or s 21A of the Act in relation to providing relevant evidence in respect of the absence of testamentary capacity.
The defendant also referred the Court to the following statement by Dodds-Streeton AJA in the Court of Appeal in Boulton v Sanders:[3]
Where an application is brought by and for the benefit of persons including the applicant, rather than by a disinterested administrator, the ordinary principles governing costs in adversarial litigation properly apply. It should not be presumed that the estate, rather than an unsuccessful applicant, will be ordered to pay the costs of the proceeding merely because there is “a fair case of dispute”.
In determining whether it is appropriate to exercise the discretion to order that the costs of [a statutory will application] be paid from the estate of a living but incapacitated person, the avoidance of any potentially adverse impact on that vulnerable person’s long-term security and welfare will always be an important consideration.
[3][2004] VSCA 112, [153]-[154], with whom Ormiston and Charles JJA agreed.
The defendant sought to apply these observations to the present case and submitted that Mrs Tarquinio was without assets and that accordingly the cost burden should fall on the plaintiff personally, the plaintiff’s solicitors ‘or’ his brother Robert Tarquinio who filed an affidavit in support of the application and stood to benefit by receiving the entire estate if the application had been granted.
The defendant emphasised that the plaintiff’s application was dismissed because of a failure to satisfy the Court of the requirement in s 21B(b) of the Wills Act 1997 on the basis that there was no evidence of Mrs Tarquinio’s testamentary intentions, nor what her intentions would likely be. The defendant submits that the application had no proper basis because the requirements were never able to be satisfied; the necessary evidence of intention could never have been obtained from Mrs Tarquinio due to her condition. Further it was submitted that the absence of these fundamental requirements was known by the solicitors for the plaintiff and as such the costs of the failed application should be borne by them.
In support of these submissions, the defendant referred to s 18(d) of the Civil Procedure Act 2010 and the statement by Dixon J in Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5)[4] that ‘the conduct of the solicitor can only be judged in the context of what was known or ought to have been known by the solicitor at the relevant time.’[5] The defendant relied on r 63.23 of the Supreme Court (General Civil Procedure) Rules 2015, pursuant to which the Court may order costs against a solicitor for a party where costs have been incurred improperly or without reasonable cause or to be wasted by a failure to act with reasonable competence and expedition.
[4][2014] VSC 400.
[5]Ibid [80].
The defendant also relied on s 24 of the Supreme Court Act 1986 as a source of power for the Court to make a costs order against a non-party, namely Robert Tarquinio. It was asserted that there was no proper evidence for the assertions made by Robert Tarquinio in his affidavit relied on by the plaintiff that the defendant was estranged from his mother, and that Mrs Tarquinio wished for nothing to be left to him.
Consideration
The starting point is that the question of costs is to be determined having regard to the circumstances of this particular case. It is therefore necessary to treat with care the approach to costs adopted in other cases.
In this matter, the plaintiff’s reliance on Boulton v Sanders is apt to mislead. In that case, the unsuccessful applicant for a statutory will stood to benefit under the will. It was accordingly entirely understandable why, as Dodds-Streeton AJA stated, ‘the ordinary principles governing costs in adversarial litigation properly apply.’ Here however, the plaintiff is a disinterested administrator and did not stand to benefit from the application being granted. In that regard, the circumstances of the present case are more closely analogous to those in Plowright v Burge in which:[6]
… the plaintiff brought the application as administrator of Mrs Wilson’s estate. He had no personal financial interest in the outcome. He did not stand to gain, or lose, by the application succeeding or failing. He was a disinterested administrator. As such, in my view, he would at least normally be entitled to recoup his costs out of the estate of the represented person. That does not mean that where appropriate he may not recover costs from another party.
Hansen J granted the plaintiff’s application for a statutory will and ordered that the plaintiff’s costs be paid out of the incapacitated person’s estate.
[6][2006] VSC 69, [10] (Hansen J) (emphasis added).
The central proposition advanced by the defendant in his various submissions as to why the plaintiff’s costs should be borne personally by the plaintiff, his solicitor and Robert Tarquinio is that there was never any proper basis for the plaintiff’s application and that the application which was brought was doomed to fail.
This submission is not without force in light of my reasons for dismissing the plaintiff’s application. I do not repeat those reasons here; they should be read with this decision on costs. However I do not consider that the failure at trial of the plaintiff’s case was a result which the plaintiff and his solicitors should reasonably have foreseen as being very likely when the proceeding was commenced. Mrs Tarquinio’s medical and psychiatric condition was complex. It was the subject of various and numerous medical reports. Further, as noted by the plaintiff in his submissions on costs, this included the following opinion from Amanda Niu and Dr Judy Tang:
As Maria was able to consistently express her wishes that Robert receive a substantial portion of her estate, it is encouraged that her future substitute decision maker assists in also reflecting these wishes.
It is apparent then that, in the context of Mrs Tarquinio’s complex medical needs, the course of action adopted by the plaintiff in seeking a statutory will in which only Robert Tarquinio would benefit was one which was consistent with the views of the medical practitioners who treated and assessed Mrs Tarquinio.
In that regard, in considering the question of costs, the fact that the plaintiff never stood to benefit from the making of the proposed will is a matter which weighs against the making of orders of the type sought by the defendant. There is no basis for the Court to find that the plaintiff exercised his powers of administration other than in what he considered to be in Mrs Tarquinio’s best interests. The fact that he was ultimately found to be mistaken in the course adopted is not a proper basis to require him (or his solicitor) to be personally liable for the costs incurred in the proceeding.
For the above reasons, I reject the defendant’s submission that the plaintiff or his solicitor acted improperly, without reasonable cause or without reasonable competence so as to justify the making of a costs order under s 24 of the Supreme Court Act 1986 or r 63.23 of the Supreme Court (General Civil Procedure) Rules 2015.
I likewise reject the claim that Robert Tarquinio be personally liable for the plaintiff’s costs. The matters the foundation of that claim – that there was no proper basis for the statements in Robert Tarquinio’s affidavit relied that the defendant was estranged from his mother, and that Mrs Tarquinio wished for nothing to be left to him – were not the subject of any determination by the Court.
For the above reasons, having considered all of the submissions advanced by the defendant, including the small size of Mrs Tarquinio’s estate, I reject the submission that the plaintiff’s costs should be borne personally by the plaintiff, his solicitor and Robert Tarquinio.
The Court will make orders that there be no order as to the plaintiff’s and defendant’s costs.
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