Reid v Brett - [2004] VSC 403

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5703 of 2004

IN THE WILL AND ESTATE OF JOHN RICKET HUBBARD

SUSAN REID & ORS	Plaintiffs
v.
CHARLES BERNARD BRETT & ORS	Defendants

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JUDGE:	MORRIS, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2004
DATE OF JUDGMENT:	12 October 2004
MEDIUM NEUTRAL CITATION:	[2004] VSC 403

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms C.E. Molyneux, Q.C. Mr A. Kirby
For the First Defendant	Mr Robin A. Brett, Q.C. Mr W. Rimmer

HIS HONOUR:

The plaintiffs seek an order restraining the first defendant, who is the administrator of the will and estate of John Rickett Hubbard, deceased, from expending any funds of, or incurring any liabilities on behalf of, the estate of the deceased, or Susan's Fund (under the terms of the will and estate of the deceased) on solicitors' fees or counsel's fees in respect of any proposed or contemplated litigation, or any legal advice in connection with such proposed or contemplated litigation, other than this proceeding and proceeding 5260 of 2004, until the hearing and determination of this proceeding or further order.

This proceeding and proceeding 5260 of 2004 are expected to be heard in March 2005. The proceedings involve questions concerning the estate of the deceased, the distribution of the assets of the estate and the appointment of trustees for various trustee funds created under the will for the estate.

The facts are set out in detail in the plaintiffs' outline of submissions, which is in turn drawn from various affidavits and witness statements which are referred to in that document. Having regard to the interlocutory nature of this application, it is both unnecessary and undesirable to recite those facts in full. Rather it is sufficient to note that the facts as stated in the outline are, together with other material I will refer to, the basis of my decision. A key part of the evidence is the affidavit of Charles Brett dated 27 September 2004.

It is easy in a case like this to get ahead of oneself and to seek to determine issues that are best left until the full hearing of the two proceedings in March 2005. Essentially, an interlocutory proceeding is designed to best balance the interests of the parties pending the final hearing and determination of the proceeding; and also to deal with procedural and other like issues that need to be dealt with before the matter is finally determined. In the context of the application now before the Court, the principal issue that must be resolved is what is the most appropriate course to adopt to fairly and appropriately balance the interests of the parties pending the hearing.

The established principles in relation to interlocutory injunctions are essentially that there must be a serious issue to be tried and it be in the balance of convenience that the injunction be granted. However, in my opinion, the serious issue must be connected in some way…

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 Reid v Brett

Details

AGLC: Reid v Brett [2004] VSC 403
Case: [2004] VSC 403
Decision Date: 12 October 2004

CaseChat Overview and Summary

In the Supreme Court of Victoria, the plaintiffs, led by Susan Reid, sought an order to prevent the first defendant, Charles Bernard Brett, who is the administrator of the will and estate of the deceased John Rickett Hubbard, from expending any funds of, or incurring any liabilities on behalf of, the estate or Susan's Fund on solicitors' fees or counsel's fees for any proposed or contemplated litigation, or any legal advice in connection with such proposed or contemplated litigation, other than this proceeding and proceeding 5260 of 2004, until the hearing and determination of this proceeding. The proceedings involved questions concerning the estate of the deceased, the distribution of the assets of the estate and the appointment of trustees for various trustee funds created under the will for the estate. The court had to decide whether the plaintiffs had demonstrated a serious issue to be tried concerning the estate, and whether it was in the balance of convenience to grant the injunction sought.

The court held that the plaintiffs had demonstrated a serious issue to be tried concerning whether Susan's Fund was to receive the remaining half of the residuary estate in addition to the half it was to receive, and as to who should be the trustees of Susan's Fund. It would appear that, in addition to those matters, the plaintiff contended that another serious issue to be tried was whether the residuary estate had already been distributed to Susan's Fund in particular, but possibly also to John's Fund. It was said that there had been an “assent”, with the consequence that funds that have been distributed are now held by the first defendant, not as administrator but as trustee, and cannot be accessed by the administrator as such for expenditure on legal advice or litigation. The court found that there was a serious issue to be tried in March next year on that question. The court also found that the balance of convenience was best served if it made an order directed at the first defendant, but the order should not be in the terms sought in the summons. Rather, the court should order that in the event that the first defendant expends any funds of, or incurs any liabilities on behalf of, the estate of the deceased or Susan's Fund on solicitors' fees or counsel's fees in respect of any proposed or contemplated litigation, or any legal advice in connection with such proposed or contemplated litigation, other than this proceeding or proceeding No.5620 of 2004, he must forthwith notify the plaintiffs in writing of the subject matter of such litigation or advice.

The court proposed to make an order that costs be paid out of the estate, taking into account that the plaintiffs had a substantial interest in the estate, an interest that would appear to be at least half and potentially 100%, or possibly somewhere in between. If the court made that order, ultimately it was the plaintiffs who would be deprived of a substantial proportion of the sum as the result of the costs incurred today. The court thought it better reflected the fact that it had made an order, albeit one which the counsel for the first defendant agreed was significantly less than the one that was sought.

Orders