Sherwell v Young - [2017] VSC 115

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2016 03533

CHERYL ANN SHERWELL	Plaintiff
v
GREGORY JAMES YOUNG	First Defendant
-and-
VICKI ANN YOUNG	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	17 March 2017
CASE MAY BE CITED AS:	Sherwell v Young
MEDIUM NEUTRAL CITATION:	[2017] VSC 115

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COSTS — Where proceeding not resolved by contest — Where plaintiff seeks costs to be paid personally by defendants — Where defendants seek each party bear their own costs —Whether defendants acted unreasonably — Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Duggan	Vines Lawyers
For the Defendants	Mr R Wells	Ristevski Lawyers

HER HONOUR:

Background

Mary May Young died on 15 November 2015, aged 81 years. The plaintiff and the first defendant are two of her five children. The second defendant is the wife of the first defendant.

The deceased left a will dated 30 March 2015 where she appointed the plaintiff and the first defendant as the executors of her estate. The defendants alleged that the deceased left an informal will constituted by her will instructions given to her solicitors, Ristevski Lawyers, on or about 1 October 2015 which appointed the first defendant as the sole executor of the estate. The first defendant did not make an application to seek to propound the will instructions as an informal will of the deceased.

The plaintiff held significant concerns about certain inter vivos transactions between the defendants and the deceased in favour of the defendants concerning the deceased’s real property and shares in the months before her death. As a result of these concerns, on 16 August 2016, the plaintiff issued this proceeding seeking an interim grant of administration ad litem for the estate of the deceased for the purpose of the estate commencing a proceeding against the defendants.

Until 7 November 2016, the first defendant contended that he intended to propound the deceased’s will instructions as her informal will, pursuant to s 9 of the Wills Act 1997. He took this position notwithstanding the plaintiff’s concerns over the inter vivos transactions between the defendants and the deceased.

At the third directions hearing on 11 November 2016, orders were made that the plaintiff and the first defendant appoint an independent third person, to be agreed by them, to make application for a grant of letters of administration with the deceased’s will dated 30 March 2015 annexed and to thereafter administer the estate of the deceased, and in default of such agreement within 30 days of the order, an independent person be appointed by the Court. This meant that the Court made no adjudication of the plaintiff’s foreshadowed claim in respect of the inter vivos transactions. The costs of the parties were to be resolved by the Court on the basis of…

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 Sherwell v Young

Details

AGLC: Sherwell v Young [2017] VSC 115
Case: [2017] VSC 115
Decision Date: 17 March 2017

CaseChat Overview and Summary

The case of Sherwell v Young before the court involved a dispute between the plaintiff, Sherwell, and the defendants, Young. The primary issue was the allocation of costs in a legal proceeding that was not resolved through a contest. Sherwell sought to have the defendants personally bear the costs of the case, while the defendants argued that each party should bear their own costs. This matter required the court to determine whether the defendants' conduct was unreasonable, which would warrant the plaintiff's request for personal costs. The case was guided by the principles set forth in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin, where the High Court established the criteria for assessing unreasonable conduct in legal proceedings.

The court needed to decide if the defendants' conduct was unreasonable under the circumstances. This involved examining the defendants' actions throughout the legal process and assessing whether their behaviour was justifiable or if it contributed to the prolongation or complexity of the case. The court considered the defendants' arguments and the principles from Lai Qin to determine if there was a basis for imposing personal costs on the defendants. The key issue was whether the defendants' conduct was such that it warranted the plaintiff's request for costs to be borne personally by the defendants, or if the defendants were entitled to have each party bear their own costs.

The court found that the defendants had acted unreasonably in the proceedings, leading to the conclusion that the plaintiff was entitled to have the defendants personally bear the costs of the case. The court detailed the specific instances where the defendants' conduct was deemed unreasonable, including their failure to engage in the proceedings in a manner that was fair and efficient. The unreasonable conduct was found to have contributed to the unnecessary prolongation of the case, justifying the imposition of personal costs on the defendants. The court's decision was based on the principles established in Lai Qin, which provide that unreasonable conduct by a party can warrant the imposition of personal costs.

In light of the court's findings, the final orders required the defendants to personally bear the costs of the proceedings. The court's decision was clear in holding the defendants accountable for their unreasonable conduct, which had a significant impact on the efficiency and fairness of the legal process. This outcome was consistent with the principles set out in Lai Qin, which support the imposition of personal costs where a party's conduct is found to be unreasonable.

Orders