Re Tarquinio (No 2) - [2019] VSC 244

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…

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 Tarquinio (No 2)

Details

AGLC: Re Tarquinio (No 2) [2019] VSC 244
Case: [2019] VSC 244
Decision Date: 12 April 2019

CaseChat Overview and Summary

The case of Re Tarquinio (No 2) involved a dispute over the costs associated with a proposed statutory will that had not been executed. The plaintiff sought to recover costs from the administrator of the deceased's estate, the plaintiff's solicitors, and a beneficiary. The administrator, who was disinterested in the outcome of the costs dispute, was the primary focus of the plaintiff's application. The court had to determine whether the administrator was liable for the costs and if the plaintiff's application was justified.

The legal issues before the court included whether the administrator of the estate was bound to pay the costs of the proceeding, and if so, to what extent. Another issue was whether the court could make an order for costs against the disinterested administrator, the plaintiff's solicitors, and the beneficiary. The court had to examine the relevant statutory provisions and case law to determine the appropriate course of action.

In its decision, the court found that the proposed statutory will had not been made, and therefore, the administrator was not liable for any costs associated with the proceedings. The court noted that the administrator was disinterested and had acted in the best interest of the estate. The court held that there was no basis for making an order as to costs against the administrator, the plaintiff's solicitors, or the beneficiary. The court concluded that the plaintiff's application for costs was not justified.

The court did not make any order as to costs against the administrator, the plaintiff's solicitors, or the beneficiary. The decision highlighted the importance of the disinterested nature of the administrator and the lack of any statutory provision that would impose a liability on the administrator for costs in such circumstances. The court's decision provided clarity on the issue of costs in relation to proposed statutory wills and the role of disinterested administrators in such cases.

Orders