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Re Tsaousis

Re Tsaousis

Case [2019] VSC 511 31 July 2019

Costs

Indemnity Costs

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2018 04499

IN THE MATTER of the will of PATRA TSAOUSIS, deceased

BETWEEN:

STANITSAS (STEVE) TSAOUSIS	Plaintiff
v
CHRISTOPHER TSAOUSIS (a minor, by his litigation guardian VICKI TSAOUSIS)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2019
DATE OF JUDGMENT:	31 July 2019
CASE MAY BE CITED AS:	Re Tsaousis
MEDIUM NEUTRAL CITATION:	[2019] VSC 511

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COSTS — Where plaintiff conceded at trial that there was insufficient evidence to prove testamentary capacity — Whether conduct of the plaintiff unreasonable — Where solicitor continued to act in position of conflict — Whether plaintiff should pay costs personally on an indemnity basis — Indemnity costs awarded against plaintiff without recourse from the estate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Wells	Dandanis & Associates until 5 February 2019 Zervos Lawyers from 6 February 2019
For the Defendant	Mr S Pitt	Lawson Hughes Peter Walsh

HER HONOUR:

Introduction

Patra Tsaousis died on 23 October 2017, aged 89 years. She was survived by her two adult children, Stanitsas Tsaousis (‘the plaintiff’) and Athina Georgitsarou, and her grandson (‘the defendant’). The defendant is the child of the deceased’s son, Arthur Tsaousis, and is represented by his litigation guardian.

The deceased’s estate was valued for probate at $911,501, comprising the deceased’s property in Clayton valued at $905,000 and a small amount of cash.

At the time of the deceased’s death, she was living in an aged care centre in Clayton. According to the deceased’s death certificate, as informed by the plaintiff, prior to her death the deceased suffered from vascular dementia for five years and Alzheimer’s dementia for four years.

In the last years of her life, the deceased made three wills; they are dated 18 February 2015, 13 December 2013 and 3 July 2009. Each will was drawn by Mr Con Fabiatos, solicitor, of Dandanis & Associates. The 2015 will benefits the plaintiff to a much greater extent than the 2013 will and the 2009 will, to the detriment of the defendant.

Under the 2013 will and the 2009 will, the plaintiff and the defendant receive the Clayton property in equal shares. Under the 2015 will, the plaintiff is devised a life interest in the Clayton property where he can live as long as he wishes before electing, at any time during his life and at his sole discretion, to purchase the Clayton property, which is to be valued by a registered valuer, and pay one half of the value of the property less $25,000 to the defendant. As well as significantly reducing the value of the defendant’s share of the estate, there is the possibility of delay to the defendant in receiving his share of the estate.

Plaintiff’s application

By originating motion filed 21 March 2018, the plaintiff sought a grant of probate of the 2015 will. The plaintiff’s solicitor at that time was Mr Fabiatos.…

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 Tsaousis

Details

AGLC: Re Tsaousis [2019] VSC 511
Case: [2019] VSC 511
Decision Date: 31 July 2019

CaseChat Overview and Summary

The matter of Re Tsaousis was heard by the Supreme Court of South Australia. The plaintiff, the daughter of the deceased, brought a claim contesting the validity of her mother's will. During the trial, the plaintiff conceded that there was insufficient evidence to establish the deceased's testamentary capacity. Despite this concession, the plaintiff continued to pursue the case, leading to the question of whether the plaintiff's conduct was unreasonable and whether the plaintiff should bear the costs on an indemnity basis.

The central legal issue before the court was whether the plaintiff's continued pursuit of the case, despite conceding the lack of evidence to prove testamentary capacity, constituted unreasonable conduct warranting an order for indemnity costs. Additionally, the court needed to determine whether the plaintiff's solicitor's continued involvement in the case, despite being in a position of conflict, contributed to the unreasonableness of the plaintiff's conduct.

The court held that the plaintiff's continued pursuit of the case after conceding insufficient evidence to prove testamentary capacity was unreasonable. The court found that the plaintiff's conduct was further exacerbated by the solicitor's ongoing involvement in the case despite the conflict of interest. Consequently, the court awarded indemnity costs against the plaintiff, ruling that she should bear these costs personally without recourse to the deceased's estate. The court's decision underscored the importance of reasonable conduct in litigation and the need to avoid conflicts of interest.

Orders