JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	10 February 2025
CASE MAY BE CITED AS:	Thomson v Thomson (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 27

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PROCEDURE – Costs – Passing over application – Judicial Registrar found there was no prima facie case – Judicial Registrar ordered costs of the plaintiff be paid by the caveators – Caveators seek costs order be vacated – Order is final and not interlocutory – No established category of exceptional circumstance to vary final order – Costs order to remain undisturbed - Hall v Nominal Defendant (1966) 117 CLR 423 – Gardiner v Hughes [2019] VSCA 198 – Dodoro v Knighting (2004) 10 VR 277.

PROCEDURE – Costs – Probate application – Caveators seeks plaintiff bear their own costs – Caveators submit plaintiff ought never have made application for a grant – Claims giving rise to conflict of interest not initially pressed by plaintiff – Plaintiff entitled to costs on standard basis borne by the estate.

PROCEDURE – Costs – Appeal of orders of Judicial Registrar in relation to passing over application – Where appeal not to be determined – Caveators seek that plaintiff pay costs of appeal – Plaintiff profoundly conflicted between personal interests and executorial duties – Caveators overwhelmingly likely to succeed on appeal – Plaintiff to pay caveators costs of appeal – Plaintiff to be responsible for own costs of the appeal – Stuart v Mordialloc Sporting Club [2020] VSC 658 – Eyre-Walker v Swyrydan (Costs) [2024] VSC 29.

PROCEDURE – Costs – Renunciation application – Where each party seeks the other party pay its costs – Appropriate that plaintiff and caveators’ costs of the application be borne by the deceased’s estate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Rozner	Whiting Lawyers
For the Caveators	Mr J Smith	KHQ Lawyers

HIS HONOUR:

These reasons for judgment determine various controversies in respect of costs relating to an application for a grant of probate made by the plaintiff on 30 June 2021 in respect of a Will dated 25 January 2017 made by Raymond Thomson (the deceased) who died on 25 December 2020.

The Will appoints the plaintiff, who is the deceased’s brother, as executor of the deceased’s estate, or alternatively the deceased’s niece, Julia Talbot. On 31 May 2024, the Court made orders granting leave to the plaintiff to renounce his executorship of the deceased’s estate.[1] The remaining issue between the parties concerns liability for costs in respect of the litigation which occurred in relation to the plaintiff’s application for probate.
[1]On 22 March 2024, Ms Talbot filed a renunciation of probate. Further, on 17 October 2024,…

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 Thomson v Thomson (No 2)

Details

AGLC: Thomson v Thomson (No 2) [2025] VSC 27
Case: [2025] VSC 27
Decision Date: 10 February 2025

CaseChat Overview and Summary

In the case of Thomson v Thomson (No 2), the dispute involved the costs of legal proceedings related to the estate of a deceased individual. The Judicial Registrar initially ordered that the plaintiff, who was a beneficiary of the estate, bear the costs of a passing over application, which the Registrar found had no merit. The caveators, who contested the will, sought to vacate this costs order and argued that the plaintiff should bear their own costs. They further argued that the plaintiff should not have initiated the application for a grant of probate and that the claims presented by the plaintiff did not initially align with their interests. The court was required to determine whether the initial costs order should be vacated, whether the plaintiff should bear the costs of the appeal, and whether the costs of the renunciation application should be borne by the estate.

The court examined the nature of the costs orders and their finality, noting that the order in the passing over application was final and not interlocutory. It held that there was no established category of exceptional circumstances that would justify varying the final order. The court also considered the principles in Hall v Nominal Defendant and Gardiner v Hughes, which reinforced the finality of such orders. In relation to the appeal costs, the court found that the plaintiff was profoundly conflicted between their personal interests and their duties as an executor, and that the caveators were overwhelmingly likely to succeed on appeal. Consequently, the court ordered that the plaintiff bear the costs of the appeal. Lastly, the court held that the costs of the renunciation application should be borne by the deceased’s estate, as both parties sought the other to pay their costs.

The court's reasoning was grounded in established legal principles regarding the finality of costs orders and the circumstances under which they may be varied. The court also considered the conflict of interest faced by the plaintiff in the context of the appeal and the principle that the costs of a renunciation application should typically be borne by the estate. The outcome was that the initial costs order in the passing over application was to remain undisturbed, the plaintiff was to bear the costs of the appeal, and the costs of the renunciation application were to be borne by the estate.

No further orders were made beyond those outlined in the court’s reasoning and decision.

Orders