JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2013
DATE OF JUDGMENT:	21 November 2013
CASE MAY BE CITED AS:	Rowe v Storer [No 2]
MEDIUM NEUTRAL CITATION:	[2013] VSC 635

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COSTS — Application for admission of informal will to probate — Application unsuccessful — plaintiff sought costs out of the estate — Whether usual order as to costs should apply — Exceptions to the usual order as to costs in probate litigation — Whether the litigation is the fault of the deceased — Reasonableness of the plaintiff in pursuing the application — No evidence of testamentary intention — No duty to propound an informal will — Calderbank offer rejected unreasonably — Defendant did not seek costs against the plaintiff — Plaintiff to bear own costs

COSTS — Pendente lite application — Application unsuccessful — Application unnecessary because letters of administration granted — Reasonable application in the circumstances — Applicant entitled to costs out of the estate

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R B Phillips	McNab McNab & Starke
For the Defendant	Ms U Stanisich	Burdon-Smith & Associates

HER HONOUR:

On 13 September 2013, I made orders dismissing an application by the plaintiff for a grant of probate, and granted letters of administration to the defendant subject to the requirements of the Registrar of Probates. The facts of this application and its determination are set out in my judgment in Rowe v Storer [No 1].[1]
[1][2013] VSC 385 (2 August 2013).

The question then arose as to the appropriate order for costs. The plaintiff submitted that the costs of both the plaintiff and the defendant should be paid out of the estate. The defendant submitted that the plaintiff should bear her own costs of the proceeding, and that the defendant’s costs should be paid out of the estate on an indemnity basis.

At the subsequent hearing in relation to costs, further affidavit material was filed indicating that on 13 November 2012 an offer of compromise ‘without prejudice save as to costs’ (‘the Calderbank offer’) had been made to the plaintiff, which was rejected on 27 November 2012. That offer was made by the four of the beneficiaries of the intestate estate of the deceased with the approval and consent of the defendant. It provided:

1.Your client withdraws her caveat and allows Letters of Administration to be granted to Linda Mayes.
2.The estate of the deceased be administered as follows:
a.The proceeds of the accounts held with the Commonwealth Bank be applied as follows:
i.$6 000 be paid to Tooradin Fire Brigade;
ii.$6 000 be paid to the Koo Wee Rup Memorial Hospital;
iii.Payment of the reasonable costs and disbursements of your client, Ms. Klemis, Ms Storer and our clients…

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 Rowe v Storer (No 2)

Details

AGLC: Rowe v Storer (No 2) [2013] VSC 635
Case: [2013] VSC 635
Decision Date: 21 November 2013

CaseChat Overview and Summary

The case of Rowe v Storer (No 2) involves an application for the admission of an informal will to probate. The application was unsuccessful, and the plaintiff sought costs out of the estate. The primary legal issues before the court were whether the usual order as to costs should apply and if there were exceptions to the usual order in probate litigation. Specifically, the court needed to determine if the litigation was the fault of the deceased, if the plaintiff was reasonable in pursuing the application, and if there was any evidence of testamentary intention. Additionally, the court considered whether there was a duty to propound an informal will and if a Calderbank offer was rejected unreasonably.

The court found that the plaintiff was not entitled to costs out of the estate. The usual order as to costs in probate litigation typically favours the party who succeeds in the litigation. However, exceptions to this rule apply, particularly when the litigation is due to the deceased's fault or when the pursuing party acted unreasonably. The court concluded that there was no evidence of testamentary intention, and there was no duty to propound an informal will. Furthermore, the plaintiff unreasonably rejected a Calderbank offer, and the defendant did not seek costs against the plaintiff. Therefore, the plaintiff had to bear their own costs.

The court ruled that the plaintiff's application for costs out of the estate was unsuccessful. The court also found that the pendente lite application was reasonable given the circumstances, but the applicant was not entitled to costs out of the estate as the application was unnecessary once letters of administration were granted. The final orders of the court reflect this decision, with the plaintiff bearing their own costs.

Orders