Santin v Sfameni (No 2) - [2020] VSC 326

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 03031

IN THE MATTER of the Will and Estate of EMILIO SANTIN, deceased

CARLO SANTIN	First Plaintiff
- and -
BRUNO SANTIN	Second Plaintiff
v
ROSANNA SFAMENI	Defendant
(as executor and trustee of the Estate of Emilio Santin, deceased)

---

JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	3 June 2020
CASE MAY BE CITED AS:	Santin v Sfameni (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 326

---

COSTS – Estate litigation – Whether costs should follow the event – Where plaintiffs sought removal of defendant as executor and equitable relief – Where defendant belatedly consented to removal as executor – Where plaintiffs discontinued claim for equitable relief – Where plaintiffs successfully resisted defendant’s application to restrain plaintiffs’ solicitor from acting – Costs follow the event except as to costs incurred for discontinued claim – Supreme Court Act 1986, s 24 – Oshlack v Richmond River Council (1998) 193 CLR 72, applied.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	J Smith	John Whelan Commercial Lawyer
For the Defendant	C R Northrop	Goldsmiths Lawyers

HIS HONOUR:

In this proceeding, the plaintiffs sought the removal of the defendant as the executor and trustee of the estate of Emilio Santin, as well as declarations and remedies regarding alleged breaches by the defendant of her duties as executor. A number of applications were also heard in this proceeding. Ultimately, the defendant was removed as executor and replaced with an independent administrator. This judgment concerns the question of costs of the proceeding and related applications.

Background

The plaintiffs commenced this proceeding on 5 July 2019. They sought the removal of the defendant as executor and trustee of the estate and the appointment of themselves or an independent person as executor and trustee instead. The plaintiffs also sought the following orders:

11.A declaration that the Defendant caused loss to the estate of the deceased by failing to:
(a)refinance the loan secured by mortgage over the Estate property situated at 2 Ormond Road, Ascot Vale (the Property);

(b)let the Property;
(c)account for the items identified in paragraph 10 of the First Plaintiff’s affidavit sworn 5 June 2019.

12.A declaration that the Defendant and her husband Salvatore Sfameni be prohibited from recovering interest pursuant to the mortgage over the Property at a rate above the reasonably obtainable market rate from the date of the deceased’s death.
13.The Defendant pay equitable compensation to the Estate in relation to each of the matters identified in the previous paragraph.

The proceeding came before me for directions on 23 August 2019. The plaintiffs suggested that the proceeding could be heard ‘in a broken down process’, with the removal application first and the application for declarations and equitable compensation afterwards, if the plaintiffs were appointed as executors. I declined to take that course of action. The plaintiffs accepted that, if they were…

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.

Keep reading for free

Create a free CaseChat account to read Santin v Sfameni (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] VSC 326
Decision Date: 3 June 2020

CaseChat Overview and Summary

In the case of Santin v Sfameni (No 2), the plaintiffs sought to have the defendant removed as the executor of an estate and also sought equitable relief. The defendant had initially resisted these claims but later consented to being removed as executor. The plaintiffs subsequently discontinued their claim for equitable relief. The matter came before the court to determine the costs of the litigation. The court had to decide whether the costs should follow the event or if there were any exceptions, and if so, which party should bear those costs.

The legal issues before the court included whether the costs incurred by the plaintiffs in their unsuccessful claim for equitable relief should be borne by the defendant. The court also had to consider whether the costs incurred in resisting the defendant's application to restrain the plaintiffs’ solicitor from acting should be borne by the defendant. The principles established in Oshlack v Richmond River Council were applied to determine the appropriate allocation of costs.

The court held that generally, costs should follow the event. However, the court made an exception for the costs incurred by the plaintiffs in their discontinued claim for equitable relief. These costs were not to be borne by the defendant. The court also found that the costs incurred by the plaintiffs in resisting the defendant’s application to restrain their solicitor were properly incurred and should be borne by the defendant. The court applied the principles from Oshlack v Richmond River Council, which state that costs should be awarded in a way that is fair and just, taking into account the conduct of the parties and the outcome of the litigation.

The final orders of the court were that costs should follow the event, except for the costs incurred by the plaintiffs in their discontinued claim for equitable relief, which were not to be borne by the defendant. Additionally, the costs incurred by the plaintiffs in resisting the defendant’s application to restrain their solicitor were to be borne by the defendant.

Orders