Ross v Ross (No 2) - [2020] VSC 148

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2018 01163

IN THE MATTER of Part IV of the Administration and Probate Act 1958

-and-

IN THE MATTER of the estate of MARGARET EDITH ROSS, deceased

BETWEEN:

LEANNE MARGARET ROSS	Plaintiff
v
GREGORY KEITH ROSS (being sued as the Executor of the Estate of MARGARET EDITH ROSS)	First Defendant
- and -
WAYNE HARRY ROSS (being sued as the Executor of the Estate of MARGARET EDITH ROSS)	Second Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2020
DATE OF JUDGMENT:	31 March 2020
CASE MAY BE CITED AS:	Ross v Ross (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 148

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COSTS – Estate litigation – Unsuccessful Part IV claim – Where defendants ceased to press debt allegedly owing by plaintiff to the estate after commencement of litigation – Where plaintiff’s position improved relative to that at the commencement of litigation – Where Calderbank offer made by defendants – Where it was unreasonable of plaintiff to reject Calderbank offer – Supreme Court Act 1986 s 24 – Supreme Court (General Civil Procedure) Rules 2015 r 63.28 – Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) (2005) 13 VR 435, applied – Mitchell v McLear [2020] VSC 25, considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Gillies	Marshalls+Dent+Wilmoth Lawyers
For the Defendants	Mr J Smith	Lyttletons Lawyers

HIS HONOUR:

On 18 December 2019, the Court dismissed the plaintiff’s application for further provision to be made from the estate of her mother pursuant to Part IV of the Administration and Probate Act 1958.[1] The plaintiff had sought provision in the amount of $588,626 in addition to what was agreed at trial to be her entitlement under the deceased’s will, being $811,374.[2] The question of costs was reserved.
[1]See Ross v Ross [2019] VSC 820 (referred to hereafter as the primary decision).
[2]Ibid [4]–[5]. The solicitor for the defendants has, in relation to the question of costs, deposed that, had the deceased’s estate been distributed six months after the grant of probate, the plaintiff would have received $807,228.14 in cash funds and shares.

Despite the fact that she was unsuccessful in her application, the plaintiff seeks orders that she be awarded costs on an indemnity basis and that the defendants’ costs be paid from their own share of the estate.[3]
[3]Alternatively, the plaintiff seeks orders that the defendants pay her costs on an indemnity basis up until the time that they no longer pressed the debt to which reference is made below and in the primary decision, and then either no order as to costs or costs on a standard basis thereafter.

The defendants seek orders that their costs be had and retained from the estate on a trustee basis and that the plaintiff pay the defendants’ costs into the estate on a standard basis to 4pm on 9 November…

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 Ross v Ross (No 2)

Details

AGLC: Ross v Ross (No 2) [2020] VSC 148
Case: [2020] VSC 148
Decision Date: 31 March 2020

CaseChat Overview and Summary

In the matter of Ross v Ross (No 2), the court was presented with an issue concerning estate litigation, specifically focusing on costs associated with an unsuccessful Part IV claim. The defendants had initially pursued a debt allegedly owed by the plaintiff to the estate, but ceased to do so after the litigation began. As the case progressed, the plaintiff's position improved relative to its standing at the outset of the litigation. The defendants made a Calderbank offer, which the plaintiff declined. The court was required to determine whether it was reasonable for the plaintiff to reject the offer and the implications this had on the costs awarded under the Supreme Court Act 1986 and the Supreme Court (General Civil Procedure) Rules 2015. The decision hinged on the precedent set by Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2), and the principles articulated in Mitchell v McLear.

The primary legal issues before the court involved the interpretation and application of the Calderbank offer and its rejection by the plaintiff. The court had to consider whether the plaintiff's refusal to accept the offer was reasonable under the circumstances, and how this affected the costs awarded. The court also needed to balance the plaintiff's improved position against the defendants' decision to cease pursuing the debt claim. The application of Supreme Court Act 1986 section 24 and Supreme Court (General Civil Procedure) Rules 2015 rule 63.28 were central to the analysis. The court examined the broader context of the litigation, including the stage at which the Calderbank offer was made and the reasons behind the plaintiff's decision to reject it.

The court concluded that it was unreasonable for the plaintiff to reject the Calderbank offer. The reasoning was based on the improved position of the plaintiff and the timing of the offer relative to the cessation of the debt claim by the defendants. The court found that the plaintiff's rejection of the offer had a significant impact on the costs awarded, aligning with the precedent set in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) and the considerations in Mitchell v McLear. Consequently, the court ordered that the plaintiff bear a substantial portion of the costs associated with the litigation. The decision underscored the importance of the Calderbank offer in estate litigation and the consequences of its unreasonable rejection.

Orders