JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2015
DATE OF JUDGMENT:	24 June 2016
CASE MAY BE CITED AS:	Rigby v Tiernan
MEDIUM NEUTRAL CITATION:	[2016] VSC 352

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COSTS – Where plaintiff beneficiary sought information and documents from defendant administrator of estate – Documents provided or inspected before and after proceeding issued – Trial on issue of costs only – Where plaintiff seeks costs be paid personally by the administrator – Where defendant seeks costs against the plaintiff – National Trustees Executors & Agency Company of Australasia Ltd v Barns (1941) 64 CLR 268 – Nolan v Collie (2003) 7 VR 287 – Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 – Trustee Act 1958, s 36(2) – Supreme Court (General Civil Procedure) Rules 2015, r 63.26

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J O’Bryan	Rennick & Gaynor
For the Defendant	Mr S R Horgan QC Mr C Möller	Best Hooper

HER HONOUR:

Background

Lawrence Valentine Rigby deceased died in 1976. By his will dated 9 November 1970, he left a life interest in his estate to his widow and, upon her death, the residue of his estate to his two children, the plaintiff and Deirdre Rigby, in equal shares.

Probate of the deceased’s will was granted to his widow on 24 October 1977. Upon her death on 10 April 1998, the plaintiff became executor of her father’s estate, pursuant to s 17 of the Administration and Probate Act 1958. The plaintiff and her sister are the only residuary beneficiaries of the estate, and each have an absolute and fixed interest in the estate.

In April 2003, the plaintiff’s sister commenced proceedings for the removal of the plaintiff as the executor of the estate of the deceased. On 5 June 2003, Mr Robert Davey was appointed administrator of the estate. On 9 December 2011, Mr Davey was discharged as administrator of the estate and Mr Michael Tiernan (‘the defendant’) was appointed administrator of the deceased’s estate. Both Mr Davey and the defendant are solicitors.

The estate contained land in the eastern suburbs of Melbourne, some of which was compulsorily acquired by various urban land authorities. An issue in the administration of the estate was Mr Davey’s handling of a compulsory acquisition of estate land by Southern Eastern Integrated Transport Authority (‘SEITA’). At the time of Mr Davey’s appointment as administrator, the land had just become the subject of a compulsory acquisition by SEITA. The plaintiff’s company, North-Side Pastoral Pty Ltd (‘North-Side’), was leasing and overholding on the land. Mr Davey did not serve notice on North-Side to terminate the overholding thereby increasing the entitlement of North-Side to compensation paid…

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 Rigby v Tiernan

Details

AGLC: Rigby v Tiernan [2016] VSC 352
Case: [2016] VSC 352
Decision Date: 24 June 2016

CaseChat Overview and Summary

In the case of Rigby v Tiernan, the plaintiff, Rigby, sought information and documents from the defendant, Tiernan, who was the administrator of an estate. The dispute involved the costs associated with the plaintiff's request for information and documents before and after the proceedings were initiated. The case was heard in the Supreme Court of Victoria.

The primary legal issues that the court had to address were whether the costs should be borne personally by the administrator, as requested by the plaintiff, and whether the defendant could claim costs against the plaintiff. The court had to consider relevant case law, including National Trustees Executors & Agency Company of Australasia Ltd v Barns (1941) 64 CLR 268, Nolan v Collie (2003) 7 VR 287, and Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, as well as the provisions of the Trustee Act 1958 and the Supreme Court (General Civil Procedure) Rules 2015.

In reaching its decision, the court examined the relevant legal principles and case law, and considered the specific circumstances of the case. The court held that the costs should not be borne personally by the administrator but should instead be borne by the estate, as the request for information and documents was made in the context of the plaintiff's entitlement as a beneficiary. The court also found that the defendant was not entitled to costs against the plaintiff, as the plaintiff's request was reasonable and made in good faith. The court's decision was based on a careful analysis of the relevant legal provisions and case law, as well as the specific facts of the case.

As a result of the court's decision, the plaintiff was not required to pay the costs personally, and the defendant was not entitled to claim costs against the plaintiff. The final orders of the court reflected these findings, and provided guidance on the appropriate allocation of costs in similar cases involving requests for information and documents by beneficiaries of an estate.

Orders