Re Wright; Wright v Ausfund Legal Pty Ltd - [2018] VSC 279

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2018 00007

STEVEN WILLIAM WRIGHT (in his capacity as executor of the estate of DAWN LORRAINE WRIGHT, deceased)	Plaintiff
v
AUSFUND LEGAL PTY LTD (ACN 007 164 570) trading as DELLIOS WEST & CO	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	29 May 2018
CASE MAY BE CITED AS:	Re Wright; Wright v Ausfund Legal Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 279

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COSTS – Where plaintiff successful – Costs follow the event – Whether indemnity costs appropriate – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S Marshall	Anthonys Solicitors
For the Defendant	Dellios West & Co

HER HONOUR:

Introduction

Dawn Lorraine Wright died on 16 February 2015 (‘the deceased’). She was survived by her three children, Steven William Wright (‘the plaintiff’), David Matthew Wright (‘Mr Wright’) and Michelle Ann Nicholson (‘Ms Nicholson’).

By her will dated 5 April 2013, the deceased named her two sons as the executors and trustees of her estate. The draft inventory of assets and liabilities prepared by the plaintiff values the real estate at $210,000 and the personal estate at $137,513. The deceased’s will was drawn by the defendant, and the original will was retained by it for safe keeping.

The executors have been estranged for a lengthy period and this has meant they have been unable to agree on many estate matters, including obtaining a grant of probate. As a result, in April 2017, Ms Nicholson issued a proceeding, pursuant to s 15 of the Administration and Probate Act 1958, seeking orders for delivery up of the original will to the Court (‘the related proceeding’).[1] On 16 June 2017, orders were made in the related proceeding that Mr Wright deliver up or do all things necessary to cause the defendant in this proceeding to deliver up the original will to the Registrar of Probates. This did not occur. The plaintiff now seeks to obtain a grant, with leave reserved to Mr Wright, however, the defendant would not release the original will unless certain conditions were met by the plaintiff.
[1]Proceeding number S CI 2017 01541.

Plaintiff’s application

By originating motion filed 2 January 2018, the plaintiff seeks orders that the defendant deliver up the deceased’s original will to the Registrar of Probates, that the plaintiff’s costs be paid on an indemnity basis and the defendant pay its own costs, without indemnity from the estate of the deceased. The application was supported by an affidavit sworn by the plaintiff on 21 December 2017 (‘the plaintiff’s affidavit’).

At the hearing on 2 March 2018, Mr Dellios appeared for the defendant. By email the previous day, the defendant informed the Court that the deceased’s original will had been delivered to the Registrar of Probates.

The plaintiff seeks his costs of the proceeding, on an indemnity basis, in the amount 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 Wright; Wright v Ausfund Legal Pty Ltd

Details

AGLC: Re Wright; Wright v Ausfund Legal Pty Ltd [2018] VSC 279
Case: [2018] VSC 279
Decision Date: 29 May 2018

CaseChat Overview and Summary

In the matter of Re Wright; Wright v Ausfund Legal Pty Ltd, the Federal Court addressed the issue of costs following a successful plaintiff's outcome, focusing on the appropriateness of indemnity costs. The plaintiff, Mr. Wright, sought indemnity costs against the defendant, Ausfund Legal Pty Ltd, arguing that there was no point of principle that should prevent such an award given his success in the proceedings. The court was tasked with determining whether indemnity costs were appropriate in this context.

The primary legal issue before the court was whether the plaintiff's success entitled him to indemnity costs. The court considered the general principle that costs typically follow the event, meaning that the unsuccessful party usually bears the costs of the successful party. However, the court also recognised exceptions where the circumstances warranted a deviation from this rule, such as when there is a point of principle that justifies indemnity costs. The court examined whether such a point of principle existed in this case.

After careful deliberation, the court concluded that there was no point of principle that precluded the award of indemnity costs in this instance. The court found that the plaintiff's success and the absence of any significant mitigating factors supported the award of indemnity costs. Consequently, the court ruled in favour of the plaintiff, determining that the defendant should bear the costs as per the indemnity costs order. This decision underscores the court's willingness to award indemnity costs when justified by the circumstances of the case.

Orders