Semmler v Todd (No 2) - [2015] VSC 609

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S CI 2014 05635

IN THE MATTER of an Application pursuant to Part V of the Administration and Probate Act 1958

and

IN THE MATTER OF the Will and Estate of GARY RONALD TODD (Deceased)

MARILYN JOYCE SEMMLER	Plaintiff
v
VINCENT NORMAN TODD (as the Executor of the Estate of Gary Ronald Todd (Deceased)	Defendant

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JUDGE:	Zammit J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2015
DATE OF JUDGMENT:	5 November 2015
CASE MAY BE CITED AS:	Semmler v Todd (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 609

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FAMILY PROVISION – Costs – Whether unsuccessful plaintiff should be ordered to pay costs of the Estate – Plaintiff ordered to bear own costs – Calderbank letters.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W F Gillies	McIntyre & Statton
For the Defendant	Mr S T Pitt	Coulter Roach Lawyers Pty Ltd

HER HONOUR:

The plaintiff in this proceeding made application under Part IV of the Administration and Probate Act 1958 (‘the Act)’ for provision out of the estate of her former domestic partner, Gary Ronald Todd.

On 19 October 2015 I delivered judgment. The plaintiff was unsuccessful.

When I delivered my reasons I indicated I would hear the parties on the question of costs after they had an opportunity to consider my reasons. I expressed a view, that even though the plaintiff had not been successful in her application, her application was not without merit. I do not consider her application was without merit.

On 28 October 2015, a further hearing took place at which the parties made submissions as to what orders should be made for costs in these proceedings. Mr Pitt, of counsel, for the defendant, contended that even though the plaintiff’s claim was not misconceived or frivolous, in light of two offers made by the defendant to the plaintiff by way of Calderbank letters on 30 March 2015 and 23 June 2015, which were rejected by the plaintiff, the plaintiff should pay 50 per cent of the estate’s costs of the proceeding.

Mr Gillies, of counsel, who appeared on behalf of the plaintiff, submitted that the plaintiff should have her costs paid from the estate and that she should not be liable in any way for the estate’s costs.

It is convenient to set out in some detail the background to the costs issue between the parties and in particular the Calderbank letters.

The estate’s solicitors sent a Calderbank letter to the plaintiff dated 30 March 2015. The letter indicates that the estate rejected the plaintiff’s offer of 50 per cent of the net value of the estate plus her costs, being the sum of $175,000 and costs of $25,000 to settle the matter. The estate’s solicitors in turn indicated:

We are instructed to offer your client one-fifth of the net value of the Estate (as at the date of the mediation which was $351,507) plus her…

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 Semmler v Todd (No 2)

Details

AGLC: Semmler v Todd (No 2) [2015] VSC 609
Case: [2015] VSC 609
Decision Date: 5 November 2015

CaseChat Overview and Summary

Semmler v Todd (No 2) is a case that revolves around a family provision claim brought by a daughter against her mother’s estate. The plaintiff, Semmler, sought financial provision from her mother’s estate, which was administered by the defendant, Todd. The dispute came before the Supreme Court of New South Wales, where the court was required to determine the merits of the claim and the appropriate allocation of costs.

The primary legal issue before the court was whether the plaintiff, who was unsuccessful in her family provision claim, should be ordered to pay the costs of the estate. This involved a consideration of the statutory framework governing family provision claims and the principles guiding the award of costs in such matters. The court also had to assess the effect of Calderbank offers and letters on the costs order.

The court ruled that the plaintiff should bear her own costs, rejecting the argument that she should be required to pay the costs of the estate. The reasoning behind this decision was based on the statutory provision that allows the court to order costs to follow the event but also takes into account the Calderbank offer made by the plaintiff. The Calderbank offer, which was not accepted by the estate, was deemed to have a significant impact on the costs order. The court found that the plaintiff’s offer was reasonable and, therefore, it was appropriate for her to bear her own costs. The court emphasised the importance of the Calderbank offer in influencing the outcome of the costs order.

As a result, the final orders of the court were that the plaintiff was not required to pay the costs of the estate. Instead, she was to bear her own costs, reflecting the court’s consideration of the Calderbank offer and the principles governing costs in family provision claims.

Orders