Re Winter-Cooke (No 3)

[2022] VSC 468

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2016 00704

IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic), and the will and estate of SAMUEL ROBERT WINTER-COOKE, deceased

- and –

IN THE MATTER of the Administration and Probate Act 1958 (Vic), and the will and estate of MARCIA WILSHIRE WINTER-COOKE, deceased

-and-

IN THE MATTER of s 175 of the Corporations Act 2001 (Cth)

BETWEEN:

ROBERT EDMUND WINTER-COOKE	Plaintiff
v
SAMUEL MARCUS WINTER-COOKE (as executor and trustee of the estate of MARCIA WILSHIRE WINTER-COOKE, and as executor and trustee of the estate of SAMUEL ROBERT WINTER-COOKE) and others according to the attached schedule	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	17 August 2022
CASE MAY BE CITED AS:	Re Winter-Cooke (No 3)
MEDIUM NEUTRAL CITATION:	[2022] VSC 468

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COSTS – Where defendants successful – No submissions from plaintiff on costs – Whether costs should follow the event – No conduct found to displace ordinary principle that costs follow the event – Whether financial disparity between parties relevant to costs decision – Plaintiff to bear costs of defendants and his own costs – Supreme Court Act 1986 (Vic) s 24 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 63 – Oshlack v Richmond River Council (1998) 193 CLR 72 – Northern Territory v Sangare (2019) 265 CLR 164.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Constable Connor & Co Pty Ltd
For the Defendants	Kathy Wilson Legal

SCHEDULE OF PARTIES

BETWEEN:

ROBERT EDMUND WINTER-COOKE

Plaintiff

- and -

SAMUEL MARCUS WINTER-COOKE
(as executor and trustee of the estate of MARCIA WILSHIRE WINTER-COOKE, and as executor and trustee of the estate of SAMUEL ROBERT WINTER-COOKE)

First defendant

CATHARINE FRANCES WINTER-COOKE

(as executor and trustee of the estate of MARCIA WILSHIRE WINTER-COOKE, and as executor and trustee of the estate of SAMUEL ROBERT WINTER-COOKE)

Second defendant

PHILIPPA ROSEMARY RISBEY

(as executor and trustee of the estate of MARCIA WILSHIRE WINTER-COOKE, and as executor and trustee of the estate of SAMUEL ROBERT WINTER-COOKE)

Third defendant

WINTER COOKE (MURNDAL) PTY LTD (ACN 004 314 443)

(as executor and trustee of the estate of MARCIA WILSHIRE WINTER-COOKE, and as executor and trustee of the estate of SAMUEL ROBERT WINTER-COOKE)

Fourth defendant

HER HONOUR:

Introduction

1. Samuel Robert Winter-Cooke died on 7 January 2008 (‘the deceased’).  He was survived by his wife, Catharine Frances Winter-Cooke (‘Catharine’), and their four children: Samuel Marcus Winter-Cooke (‘Marcus’), Philippa Risbey, Robert Winter-Cooke (‘the plaintiff’) and Arbella Winter-Cooke.

1. The defendants are the executors and trustees of the estate of the deceased: Marcus (first defendant), Catharine (second defendant), Philippa (third defendant), and Winter Cooke (Murndal) Pty Ltd (fourth defendant).  They are also the executors and trustees of the estate of the deceased’s mother, Marcia Wilshire Winter-Cooke (‘Marcia’).

1. On 26 February 2016, the plaintiff filed an originating motion commencing the proceeding which sought,…