Re Williams; Smith v Thwaites (No 3) - [2018] VSC 431

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2015 03820

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

-and-

IN THE MATTER of the Will of MARGARET MARY WILLIAMS, deceased

ELIZABETH RUTH SMITH	Plaintiff
v
ALAN KEITH THWAITES (Executor of the Will and Trustee of the Estate of MARGARET MARY WILLIAMS deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	6 August 2018
CASE MAY BE CITED AS:	Re Williams; Smith v Thwaites (No 3)
MEDIUM NEUTRAL CITATION:	[2018] VSC 431

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COSTS — Family provision — Where plaintiff obtained judgment for further provision not more favourable than defendant’s offer of compromise — Where judgment amount marginally less than defendant’s offer of compromise — Whether appropriate to otherwise order in all the circumstances — Supreme Court (General Civil Procedure) Rules 2015, r 26.08(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S P Newton	McCarthy Partners
For the Defendant	Mr S E Marantelli	Meerkin & Apel

HER HONOUR:

Introduction

Judgment in this proceeding was delivered on 23 June 2017. The Court ordered that further provision of $100,000 be made to the plaintiff from the estate of the deceased, in addition to her entitlement of $38,756 (as at the date of trial) under the deceased’s will.[1]
[1]Re Williams; Smith v Thwaites [2017] VSC 365 (23 June 2017) [69]–[70].

In respect of the plaintiff’s costs of the proceeding, the defendant sought an order that the plaintiff pay the defendant’s costs in accordance with r 26.08(3) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) based on two offers of compromise made in accordance with Order 26 of the Rules. The plaintiff sought an order that her costs of and incidental to the proceeding be paid from the estate of the deceased on the standard basis.

On 19 December 2017, the Court delivered its reasons in respect of costs.[2] The Court noted that either costs order sought by the parties would operate harshly on both parties, particularly in view of the quantum of the plaintiff’s costs compared to the amount ordered for her further provision. The Court required the plaintiff’s solicitors to address the issue of the reasonableness and proportionality of the costs and provide details of the professional fees and disbursements claimed by the plaintiff to be paid out of the estate.
[2]Re Williams; Smith v Thwaites (No 2) [2017] VSC 771 (19 December 2017).

The plaintiff’s costs as initially calculated amounted to $66,790.76, being professional fees of $42,739.80 and disbursements of $24,050.96. This amount was subsequently revised by the plaintiff’s solicitors, with the quantum now $44,000, comprising professional fees of $20,000 and disbursements of $24,000. Based on the retainer letter dated 23 June 2015 to the plaintiff and an affidavit from the plaintiff’s solicitor filed before the mediation, the plaintiff’s costs up to and including the mediation were $25,000.

The Court…

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 Williams; Smith v Thwaites (No 3)

Details

AGLC: Re Williams; Smith v Thwaites (No 3) [2018] VSC 431
Case: [2018] VSC 431
Decision Date: 6 August 2018

CaseChat Overview and Summary

In the matter of Re Williams; Smith v Thwaites, the plaintiff, Smith, sought further family provision from the estate of the deceased, Williams, following a previous court decision. The defendant, Thwaites, was the executor of the estate and had made an offer of compromise to Smith. Smith obtained a judgment for a sum not more favourable than the offer but marginally less. The court was required to determine whether, in all the circumstances, it was appropriate to order Smith to pay Thwaites' costs despite Smith's successful outcome.

The primary legal issue before the court was whether it was appropriate to order Smith to pay Thwaites' costs under the Supreme Court (General Civil Procedure) Rules 2015, rule 26.08(3). The court considered the circumstances surrounding the offer of compromise and the outcome of the proceedings, including the marginal difference between the judgment amount and the offer.

The court found that while Smith was successful in obtaining a judgment, the circumstances warranted an order for costs. It was noted that the offer of compromise was not significantly more favourable than the judgment amount, and Smith's insistence on proceeding to trial despite the offer of compromise was a key factor. The court determined that it was appropriate to order Smith to pay Thwaites' costs, taking into account the overall context of the proceedings.

The court ordered Smith to pay Thwaites' costs of the proceedings, reflecting the court's view that the circumstances justified such an order despite Smith's successful outcome.

Orders