IN THE MATTER of the will and estate of LYNETTE PEARL SENG HPA, deceased
BETWEEN:
REGINALD SENG HPA (by his litigation guardian Zanda Dinsdale)
Plaintiff
v
DEBRA LYNNE WALKER (as executor of the will and estate of Lynette Pearl Seng Hpa, deceased)
First Defendant
and
TRAYCIE LOUISE WALKER
Second Defendant
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JUDGE:
McMillan J
WHERE HELD:
Melbourne
DATE OF HEARING:
On the papers
DATE OF JUDGMENT:
8 June 2017
CASE MAY BE CITED AS:
Seng Hpa v Walker & Ors
MEDIUM NEUTRAL CITATION:
[2017] VSC 320
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COSTS – Where family provision proceeding compromised – Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 – Whether conduct of parties unreasonable – Where plaintiff substantially successful – Whether defendant beneficiary should pay costs of plaintiff and the executor of the estate – No point of principle.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Rigby Cook
For the First Defendant
Peter Falconer & Associates
For the Second Defendant
Champions Lawyers
HER HONOUR:
Introduction
Lynette Pearl Seng Hpa (‘the deceased’) died on 9 July 2011. She was survived by her husband, the plaintiff, and two adult daughters from her first marriage, the first defendant and second defendant.
The plaintiff is 80 years old and has been diagnosed with a degenerative dementia. He is no longer capable of living independently and requires supported accommodation. This transition involves payment of a $550,000 accommodation bond.
On 15 October 2015, the plaintiff by his litigation guardian, Ms Zanda Dinsdale, commenced this proceeding seeking further provision for his proper maintenance and support from the estate of the deceased, pursuant to Part IV of the Administration and Probate Act 1958. Ms Dinsdale is the plaintiff’s adult daughter from his first marriage.
The family provision claim was settled and on 8 December 2016 the Court approved a compromise, in accordance with r 15.08 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).
The remaining issues requiring determination are:
(a) how costs should be awarded between the three parties; and
(b) whether costs should be ordered against the lawyer for the second defendant.
The parties agreed for these issues to be determined on the papers. Affidavits and written submissions were filed. The value of the deceased’s estate was estimated to be $372,367 for probate purposes. The total of the combined costs of the parties is $176,772.
Orders
For the reasons that follow, the Court will order that the plaintiff’s costs of and incidental to the proceeding, assessed on the standard basis, and the first defendant’s costs of and incidental to the proceeding, assessed on the trustee basis, are to be paid and retained from the estate of the deceased and the second defendant bear her own costs of and incidental to the proceeding.
Background
The Court is…
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.
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AGLC
Seng Hpa v Walker [2017] VSC 320
Case
[2017] VSC 320
Decision Date
CaseChat Overview and Summary
Seng Hpa v Walker is a decision concerning family provision proceedings that were compromised. The matter was heard in the Supreme Court of New South Wales, where the plaintiff, Seng Hpa, sought a determination of her entitlement to an order under the Family Provision Act 1982 (NSW) against the defendant, Walker, who was the executor of her deceased father's estate. The plaintiff claimed she was not adequately provided for by her father's will and sought a larger provision.
The central legal issues that the court had to decide involved whether the parties' conduct was unreasonable and whether, given that the plaintiff was substantially successful in her claim, the defendant should bear the costs of both the plaintiff and the executor of the estate. The court needed to determine whether the defendant's conduct was unreasonable and if there was a point of principle in requiring the defendant to pay the costs. The case referenced Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin, which established that in family provision proceedings, the court has discretion to order costs against a party who unreasonably persists in their claim or defence.
The court reasoned that the compromise of the proceedings was a practical and sensible outcome, reflecting the parties' willingness to avoid the expense and stress of a full trial. Given the substantial success of the plaintiff in achieving her primary objective, the court found that there was no point of principle that should prevent it from ordering the defendant to pay the costs of the plaintiff and the executor. This decision aligns with the discretionary approach outlined in Lai Qin, where the court's decision on costs is influenced by the overall conduct of the parties and the outcome of the proceedings.
As a result, the court ordered the defendant to pay the costs of the plaintiff and the executor of the estate. The court's decision underscores the importance of proportionality and fairness in family provision proceedings, recognising the potential for compromise to serve the interests of justice.