JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RYAN -v- ZEKAS [2020] WASC 124
CORAM: HILL J
HEARD: 24 - 27 SEPTEMBER 2019
DELIVERED : 28 APRIL 2020
FILE NO/S: CIV 1144 of 2016
BETWEEN: BRIAN THOMAS RYAN
Plaintiff
AND
LOUIE ZEKAS
First Defendant
JEREMY LEE JAMES
Second Defendant
NATHAN WILLIAM JAMES
Third Defendant
Catchwords:
Family provision and maintenance - Where deceased made no provision for plaintiff in her will - Whether plaintiff in a de facto relationship with the deceased at date of death - Whether will made adequate provision for the proper maintenance and support of plaintiff - Failure by testator to make sufficient provision for applicant
Legislation:
Family Provision Act 1972 (WA), s 6(1), s 7
Interpretation Act 1984 (WA), s 13A
Result:
Application granted
Deceased's will redistributed to make adequate provision for plaintiff
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr E Ferreira |
| First Defendant | : | Mr J R Shepherd |
| Second Defendant | : | Mr J R Shepherd |
| Third Defendant | : | Mr J R Shepherd |
Solicitors:
| Plaintiff | : | Douglas Cheveralls Lawyers |
| First Defendant | : | Blackwall Legal LLP |
| Second Defendant | : | Blackwall Legal LLP |
| Third Defendant | : | Blackwall Legal LLP |
Case(s) referred to in decision(s):
Butcher v Craig [2010] WASCA 92
Coates v National Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494
Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2015] HCA 48; (2015) 257 CLR 544
Daniels v Hall [2014] WASC 152
Dean v Collins (No 2) [2015] WASCA 151
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599
Golosky v Golosky [1993] NSWCA 111
H v P [2011] WASCA 78
Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160
Kitson v Franks [2001] WASCA 134
Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (Unreported, FCA, 29 June 1995)
Lawrence v Lawrence [2004] WASC 90
Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76
Miller v Taylor [2018] WASC 75
Nominal Defendant v Cordin [2017] NSWCA 6
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
S v B [2004] QCA 449; [2005] 1 Qd R 537
Sadiq v NSW Trustee & Guardian [2015] NSWSC 716
Scherini v Conwell [2018] WASC 172
Schmidt v Malcolm [2016] WASC 209
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Thomas v Times Book Co [1966] 2 All ER 241; [1966] 1 WLR 911
Truman and Clifton [2010] FCWA 91
HILL J:
The plaintiff, Brian Thomas Ryan (Mick), says that he was…
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- Ryan v Zekas [2020] WASC 124
- Case
- [2020] WASC 124
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiff and the deceased were in a de facto relationship at the date of the deceased's death. However, the court found that the will made adequate provision for the proper maintenance and support of the plaintiff. The court held that the plaintiff's entitlement to maintenance and support was limited to the provision made by the deceased in her will. The court found that the plaintiff was not entitled to the transfer of the deceased's share in the Sorrento Property to him. The court held that the plaintiff's claim for the transfer of the deceased's share in the Sorrento Property to him was not a claim for maintenance and support but rather a claim for property. The court held that the plaintiff's claim for property was not within the scope of the Family Provision Act. The court held that the plaintiff's claim for property should be pursued in a separate proceeding.
The court fixed the costs of the proceedings at $75,000 to be paid from the proceeds of the Sorrento Property. The court held that the proceedings were not unusual or complex, and that the plaintiff was not entirely successful at trial. The court held that the plaintiff was not entitled to any special costs order. The court held that the plaintiff's costs of the preparation of witness statements and discovery were incurred in separate proceedings that had been discontinued by the plaintiff. The court held that the plaintiff was not entitled to any allowance for these costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The parties were in agreement that I should fix the costs of the proceedings to prevent further disputes between the parties. It is the usual practice to direct that issues regarding the quantum of costs be determined by a taxing officer following taxation, with the exception of costs of interlocutory applications. The advantages and disadvantages of this practice are summarised by Martin CJ in D & Z Constructions Pty Ltd v IHI Corporation.[302] [302] D & Z Constructions Pty Ltd v IHI Corporation [2013] WASC 265 (S) [7] - [9]. In this case, having regard to the relative simplicity of the costs sought by each of the parties, the fact that the parties have exchanged submissions in relation the matter and the advantages from my familiarity with the issues in the case in assessing the amounts claimed, I have concluded that the appropriate course is for me to fix the amount of the parties' costs. The plaintiff contended that his costs should be paid by the defendants without reference to the limits provided in the 2018 Costs Determination and fixed in the sum of $130,791.15, being the amount paid by the plaintiff to his solicitors. In support of this submission, the plaintiff submitted that a substantial issue at trial was whether the plaintiff and the deceased were in a de facto relationship, on which the plaintiff was entirely successful. The plaintiff contended that these proceedings were both unusually difficult and complex as well as important to the plaintiff. In support of this submission, the plaintiff referred to the length of the opening and closing submissions, the fact that substantial discovery was provided by the parties which is not usual in claims under the Act, and the length of the trial.[303] [303] Plaintiff submissions (19 May 2020) [32]. The plaintiff submits that the maximum amounts allowable under Table B of the 2018 Costs Determination be lifted to reflect the significant work that was done. In addition, the plaintiff seeks additional allowances for costs for discovery, inspection and the preparation of witness statements. The defendants contended that the costs of both parties should be fixed at $75,000 and paid from the proceeds of the Sorrento Property. The defendants submitted that the plaintiff was not entirely successful at trial. While he succeeded in his claim that he was the de facto partner of the deceased, he did not obtain orders in terms of the originating process for the transfer of the entirety of the deceased's share in the Sorrento Property to him and repayment of a loan of $149,000.[304] [304] Defendants submissions (27 April 2020) [5(a)]. The defendants submitted that no special costs order ought to be made as these proceedings were not unusual or complex. The defendants contended that any complexity was due to separate proceedings that had been commenced by the plaintiff. The defendant specifically objected to any allowance being made for the plaintiff's costs of the preparation of witness statements and discovery. This was on the basis that these costs were incurred in CIV 1021 of 2017, which was discontinued by the plaintiff. In support of this submission, the defendants provided me with an unpublished judgement of Registrar Dixon delivered on 6 November 2018.[305][305] Annexure C to Defendants' submissions.