Re Winter-Cooke (No 3)

Case [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

---

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

---

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.

---

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,…

Continue reading Re Winter-Cooke (No 3)

Sign in free to access the full text

Details
AGLC
Re Winter-Cooke (No 3) [2022] VSC 468
Case
[2022] VSC 468
Decision Date

CaseChat Overview and Summary

In the matter of Re Winter-Cooke (No 3), the defendants, who were successful in their legal proceedings, sought an order for costs. The plaintiff did not submit any arguments regarding the costs, and the court was required to determine whether costs should follow the event, which is the ordinary principle in such matters. Additionally, the court considered whether any conduct by the parties warranted a deviation from this principle and if the financial disparity between the parties should be taken into account in the decision on costs.

The court considered the relevant legal principles, including the Supreme Court Act 1986 (Vic) s 24, the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 63, and the decisions in Oshlack v Richmond River Council and Northern Territory v Sangare. The court found no misconduct by either party that would warrant a deviation from the usual principle that costs follow the event. It also held that while financial disparity between the parties could be a relevant factor, it was not determinative in this case. The court concluded that the plaintiff should bear the costs of the defendants and his own costs.

In light of the above, the court ordered that the plaintiff bear the costs of the defendants and his own costs. This decision was made in accordance with the relevant legislation and legal precedents, and took into account the circumstances of the case, including the financial disparity between the parties. The order reflects the court's view that, in the absence of any misconduct or other exceptional circumstances, the usual principle that costs follow the event should apply.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.