Sisson v Young (Ruling)

[2019] VCC 454

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

FAMILY PROPERTY LIST

Case No. CI-18-00433

IN THE MATTER of Section 99 and Part IV of the Administration and Probate Act 1958
and
IN THE MATTER of the Estate of MORIE JOAN YOUNG, Deceased
JANNETTE KARYN SISSON	First Plaintiff
and
SANDRA ROBYN WHARTON	Second Plaintiff
v
BRETT LAURENCE YOUNG (who is sued in his capacity as Executor of the Will of MORIE JOAN YOUNG, Deceased)	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	11 April 2019
CASE MAY BE CITED AS:	Sisson & Anor v Young (Ruling)
MEDIUM NEUTRAL CITATION:	[2019] VCC 454

RULING
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Subject:  TESTATOR’S FAMILY MAINTENANCE

Catchwords:             Defendant’s refusal to comply with orders for the distribution of the deceased estate – unnecessary costs incurred by the plaintiffs in enforcing the orders – application for costs

Legislation Cited:     Administration and Probate Act 1958
Cases Cited:            Matheson v Young; Sisson & Wharton v Young [2018] VCC 436

Ruling:  See Orders in the body of the Ruling.

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REPRESENTATION:	Solicitors
For the Plaintiffs	Aitken Partners Pty Ltd
For the Defendant	Seoud Solicitors

HIS HONOUR:

1       The plaintiffs now apply for an order for costs to be paid personally by the defendant on an indemnity basis without him having the right to recoup those costs or his own costs from the estate of the deceased.

2 The background to the application commences with the judgment I handed down on 12 April 2018,[1] and the Orders I made on 19 April 2018. The effect of those orders was to authorise the sale of the deceased’s property at Niddrie and to distribute the estate in accordance with the judgment and orders.

[1]Matheson v Young; Sisson & Wharton v Young [2018] VCC 436

The Defendant’s conduct

3       The plaintiffs and the defendant submitted a consent order dated 21 February 2019 to vacate a previous directions hearing and to have the defendant’s cost liability determined through written submissions.  I have read both sets of written submissions.

4       Paragraphs 9-18 of the plaintiffs’ written submissions set out the defendant’s conduct which required the plaintiffs to go to significant effort to have him comply with the Orders made on 19 April 2019.  In summary:

·He was served with the Orders.

·He refused to vacate the property in compliance with the Orders.

·On 30 May 2018, the plaintiffs filed a warrant of possession, which was lodged with the Sheriff on 4 June 2018.

·The Sheriff notified the plaintiffs’ solicitors that a Ms Vivian Smith asserted that she was a tenant of the defendant pursuant to a tenancy agreement dated 21 June 2017.

·On 12 November 2018, the plaintiffs brought an enforcement proceeding before me.

·The plaintiff’s made an application to the Supreme Court applying, among other things, to have the Tenancy Agreement declared void and of no effect, and to have the defendant removed as the trustee of the estate.

·The Supreme Court made the Orders sought by the plaintiffs on 4 December 2018.

5       The defendant was initially legally represented, however, he discontinued his retainer of those solicitors.  He did not appear at the trial before me.  He did appear subsequently at a directions hearing on 29 November 2018.  After the Orders were made relevant to the filing and service of written submissions he engaged Seoud solicitors to act on his behalf and to prepare the written submissions.  He did not appear in the Supreme Court on the hearing of the plaintiffs’ application.

6       When the plaintiff appeared at the directions hearing before me on 29 November 2018, he complained that he was unaware of the trial date and that the outcome of the trial was unfair.  Despite his stated disquiet, he has taken no step to upset the Orders I made on 19 April 2018.  In his written submissions he devoted most of those submissions to explaining why he did not appear at the trial, and otherwise referred to the unfairness in making an order for costs in the form sought by the plaintiffs.

Disposition

7       The defendant may not have liked the outcome of the trial before me; however, as I have already observed, he has made no step to upset the Orders I made on 19 April 2018.

8       It is very apparent that he deliberately took steps to frustrate the plaintiffs’ attempts to have him comply with those orders, even going to the extent of contriving a tenancy agreement.  If the tenancy agreement was legitimate, then he abandoned his chance to establish that by not appearing in the Supreme Court.

9       The only reason why the plaintiffs have taken steps for enforcement of the Orders and a separate proceeding in the Supreme Court, is due to the defendant’s conduct, resulting in the plaintiffs incurring additional and unnecessary legal costs.

10      In the circumstances, the defendant must bear the plaintiffs’ costs.  I propose to make the same order as was made in paragraph 9 of the Orders of the Supreme Court dated 4 December 2018, that the defendant personally pay the plaintiffs’ costs of and incidental to this proceeding on an indemnity basis to be assessed by the Costs Court, in default of agreement, and that the defendant shall not have any right of recoupment of such costs, or his own costs from the estate of the deceased.

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