Robinson v Jones (No 5) - [2018] VSC 202

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2014 11075

JAMES WILLIAM ROBINSON (in his capacity as executor of the will and estate of BRUCE DESMOND ANDREWS, deceased)	First Plaintiff
SIMON JOHN RALEIGH (in his capacity as executor of the will and estate of BRUCE DESMOND ANDREWS, deceased)	Second Plaintiff
v
JENNIFER LEE JONES	First Defendant
VICTORIAN ANIMAL AID TRUST	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	2 May 2018
CASE MAY BE CITED AS:	Robinson & Anor v Jones & Anor (No 5)
MEDIUM NEUTRAL CITATION:	[2018] VSC 202	First revision: 9 May 2018

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COSTS — Whether plaintiffs’ costs reasonable and proportionate to the issues in dispute — Civil Procedure Act 2010, s 24.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Best Hooper
For the First Defendant	Ms U Stanisich	Henderson & Ball Lawyers
For the Second Defendant	Mr M Clarke	Hentys Lawyers

HER HONOUR:

Background

The plaintiffs, as the named executors of Bruce Desmond Andrews, deceased, made an application for a grant of probate of an informal document pursuant to s 9 of the Wills Act 1997 (‘the Act’), said by the first plaintiff (‘Mr Robinson’) to have been approved by the deceased in a telephone conversation with him. In the alternative, application was made for a grant of the deceased’s formal will dated 26 June 2012.

Judgment on the applications was delivered in June 2015.[1] Following judgment, significant issues arose as to the power of the plaintiffs as limited administrators to enter into a settlement of the proceeding and whether the costs claimed by the parties from the estate were reasonable and proportionate to the issues in dispute, having regard to the overarching obligation of the parties to ensure that the costs are reasonable and proportionate pursuant to s 24 of the Civil Procedure Act 2010.[2]
[1]Robinson v Jones [2015] VSC 222 (1 June 2015).
[2]Ibid [137].

In reasons published on 17 July 2015 in respect of the reasonable and proportionate costs, the Court was no better informed on these aspects of the costs after considering the plaintiffs’ written submissions. As a result, the parties were ordered to file affidavits setting out the details of their respective professional costs and disbursements, including the basis of their charges.[3]
[3] Robinson v Jones (No 2) [2015] VSC 334 (17 July 2015) [39]–[40].

After a hearing on 14 August 2015, the Court determined that the plaintiffs acted beyond their limited powers in entering into the deed of settlement and should not have entered into it in the circumstances,[4] and the costs claimed by the parties were not reasonable and proportionate to the issues in dispute. In respect of the costs, the parties were to provide a proper assessment of their reasonable and proportionate professional fees and disbursements having regard to the reasons for judgment.[5]
[4]Robinson v Jones (No 3) [2015] VSC…

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 Robinson v Jones (No 5)

Details

AGLC: Robinson v Jones (No 5) [2018] VSC 202
Case: [2018] VSC 202
Decision Date: 2 May 2018

CaseChat Overview and Summary

The case of Robinson v Jones (No 5) involved a dispute between the plaintiffs, Robinson, and the defendants, Jones. The nature of the dispute was centred around the reasonableness and proportionality of the costs incurred by the plaintiffs in relation to the issues that were in dispute. This matter was heard in the Supreme Court of the State, presided over by Justice Smith.

The legal issue that the court was required to decide was whether the costs claimed by the plaintiffs were reasonable and proportionate to the issues in dispute, in accordance with the provisions of the Civil Procedure Act 2010, section 24. The court needed to assess whether the costs claimed by the plaintiffs were necessary and justifiable in the context of the issues that were in dispute.

In delivering the judgement, Justice Smith considered the provisions of section 24 of the Civil Procedure Act 2010 and the relevant case law. The court found that the costs claimed by the plaintiffs were not reasonable and proportionate to the issues in dispute. The court held that the plaintiffs had not demonstrated that the costs claimed were necessary and justifiable in the context of the issues that were in dispute. As a result, the court ordered that the plaintiffs’ costs be reduced to a reasonable and proportionate level.

In conclusion, the court ordered that the plaintiffs’ costs be reduced to a reasonable and proportionate level, in accordance with the provisions of the Civil Procedure Act 2010, section 24. The court held that the costs claimed by the plaintiffs were not reasonable and proportionate to the issues in dispute, and that the plaintiffs had not demonstrated that the costs claimed were necessary and justifiable in the context of the issues that were in dispute.

Orders