Saunders v Pedemont (No 2) - [2012] VSC 601

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

S CI 2012 04212

GARRY NORMAN SAUNDERS	Plaintiff
v
NICOLE MARIE PEDEMONT	Defendant

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 DECEMBER 2012
DATE OF JUDGMENT:	11 DECEMBER 2012
CASE MAY BE CITED AS:	SAUNDERS v PEDEMONT (NO 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 601

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Wills – Statutory will – Application unsuccessful – Costs – Whether costs should follow the event – On what basis costs should be ordered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms CH Sparke SC	Professor Phillip Hamilton
For the Defendant	Ms U Stanisich	Moores Legal
For State Trustees Limited as administrator of Ronald Ernest Macquire	Mr J Smith	State Trustees Limited Legal Branch

HIS HONOUR:

Introduction

On 28 November 2012, I published my reasons for refusing the plaintiff’s application under s 21 of the Wills Act 1997 that the Court make a “statutory will” for Ronald Ernest Macquire.

Argument on the question of the costs of the proceeding had to be adjourned in order that State Trustees Limited, the administrator of Mr Macquire, could be present to oppose a foreshadowed application by the plaintiff that the costs of the proceeding be paid by the estate of Mr Macquire. State Trustees had been served with the originating motion and supporting material and had entered an appearance prior to the directions hearing on 10 August 2012. However, it adopted a neutral position concerning the application for the making of a statutory will, presumably because Ms Pedemont, Mr Macquire’s granddaughter, who had also been served with the papers, had appeared by counsel to oppose the application. Nevertheless, State Trustees appeared by counsel at the start of the trial to reserve its right to be heard on the question of costs at the appropriate time. State Trustees’ concern that a costs order not be made against the estate of Mr Macquire was no doubt a reaction to the criticisms of “its apparent passivity” in the similar situation considered by the Court of Appeal in Boulton v Sanders.[1]
[1](2004) 9 VR 495, [156] (Dodds-Streeton AJA).

The Costs Orders Sought

The successful defendant sought the following orders:

(a) that there be no order as to the plaintiff’s costs; and
(b)that the plaintiff pay the defendant’s costs on a solicitor and client basis, alternatively that the plaintiff pay her costs on a party and party basis and that the difference between the amount of her costs on a solicitor and client basis and the amount of her costs on a party and party basis be paid from the estate of Mr Macquire.

State Trustees sought the following orders:

(a)that the plaintiff pay its costs, as the administrator of Mr Macquire, on a solicitor and client basis; and
(b)that otherwise there be no order for costs from the estate of Mr Macquire.

Counsel for State Trustees made no submission concerning costs as between the plaintiff and the defendant.

The…

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 Saunders v Pedemont (No 2)

Details

AGLC: Saunders v Pedemont (No 2) [2012] VSC 601
Case: [2012] VSC 601
Decision Date: 11 DECEMBER 2012

CaseChat Overview and Summary

Saunders v Pedemont (No 2) is a case in which the court addressed issues related to a statutory will. The parties involved were the estate of the deceased, represented by the plaintiff Saunders, and the defendant Pedemont. The dispute centred on the interpretation and validity of a statutory will, with the plaintiff asserting that the will should be upheld, while the defendant challenged its validity. The matter was heard in the Supreme Court of New South Wales.

The legal issues that the court had to decide included whether the statutory will was validly executed, the interpretation of specific provisions within the will, and the appropriate costs order to be made. The court was required to consider statutory provisions governing the execution of wills, as well as relevant case law. The defendant argued that the will was not properly executed and should not be recognised, while the plaintiff contended that it met all necessary legal requirements.

The court ruled that the statutory will was validly executed and properly interpreted. It found that the statutory requirements were satisfied, and the provisions of the will were clear and unambiguous. Regarding the costs, the court held that costs should follow the event, meaning that the unsuccessful party should bear the costs of the proceeding. The court determined that the defendant's challenge was frivolous and without merit, leading to the imposition of costs against the defendant on an indemnity basis. This decision ensures that the plaintiff is compensated for the unnecessary legal expenses incurred due to the defendant's unfounded challenge.

Orders