Thomson v Thomson (No 2)
[2025] VSC 27
•10 February 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
IN ITS PROBATE JURISDICTION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2021 11206
IN THE MATTER of the deceased estate of RAYMOND JAMES MOFFAT THOMSON
APPLICATION BY:
| GRAEME WALLACE THOMSON | Plaintiff |
| and | |
| CATHERINE TRACY THOMSON and KERRYN RAE THOMSON | Caveators |
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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, a solicitor, Mr Lachlan Vallance, of Hicks Oakley Chessell Williams, filed an application for a grant of letters of administration with the will annexed in respect of the Will.
Background and procedural history
The deceased was survived by two of his three children; they are the caveators in this proceeding and beneficiaries under the deceased’s Will (together with the children of Kerryn Thomson, one of the deceased’s nephews, and one of the deceased’s work colleagues and friends).
In his lifetime, the deceased operated a concrete drilling and sawing business known as Auscut (Auscut). He did so through the Timber Ridge Unit Trust, of which Timber Ridge Investments Pty Ltd (Timber Ridge) is trustee. Until 6 October 2020, some two months before his death, the deceased was the sole shareholder and director of that company; the plaintiff was the alternate director.
The deceased was involved in a serious motor vehicle accident in about May 2017. From about this time, it would appear that the plaintiff took control of the deceased’s affairs under a power of attorney which the plaintiff executed on 19 March 2015 (the power of attorney).
The plaintiff’s exercise of power under the power of attorney was the subject of four different proceedings in the Victorian Civil and Administrative Tribunal (VCAT) brought by the caveators or other family members in the three years before the deceased’s death in December 2020. As a result of one such application, on 28 August 2020 VCAT made various orders including suspending the plaintiff’s appointment as attorney.
Following the deceased’s death on 25 December 2020, the plaintiff advertised his intention to apply for probate of the Will on 26 March 2021.
On 18 January 2021, the caveators filed a caveat. The next day they requested that the plaintiff renounce his right to apply for probate for the following reasons set out in correspondence from their solicitor to the plaintiff’s solicitor:
...
As a result of your client’s inability to appropriately manage Raymond’s affairs whilst he was alive pursuant to the enduring power of attorney dated 19 March 2015, which resulted in his removal as attorney by VCAT, it would not be appropriate for your client to undertake the role as executor and trustee of Raymond’s estate. …
Furthermore, a large portion of Raymond’s estate is to be held on trust for my client Kerryn Thomson and the young children. You will no doubt appreciate that given the history of dealings between our respective clients, it would not be appropriate for your client to manage these funds on their behalf until they are 25.
The caveators sought that the plaintiff and Ms Talbot renounce probate and allow the caveators as next of kin to apply for a grant of letters of administration with the Will annexed.
The plaintiff did not accede to this request and on 30 June 2021 he applied for probate of the Will. The inventory of assets and liabilities filed with the application disclosed assets of $677,209.12 (comprised principally of a loan to Auscut) and liabilities of $256,493.05 (comprised principally of aged care fees). The liabilities also recorded a debt to the plaintiff of $24,159.86.
On 17 June 2021, the caveators commenced a further application against the plaintiff in VCAT seeking compensation, the production of financial documents and an explanation of transactions which occurred when he was the deceased’s attorney which the caveators considered to be suspicious (the compensation proceeding).
On 15 October 2021, the caveators filed (amended) grounds of objection alleging that the plaintiff should be passed over on various number of grounds (the passing over application).
On 27 January 2022, the plaintiff filed a revised inventory of assets and liabilities in respect of the deceased’s estate. The revised inventory identified marginally less liabilities,[2] but assets of only $60,012. As to the latter, the value of three items in the inventory were not quantified and were described either as being ‘unascertainable’ or with the descriptor ‘information withheld by the administrators’.
[2]$246,056.50.
On 28 January 2022, Keith JR heard submissions on whether there was a prima facie case in respect of the passing over application to support the maintenance of the caveat. He found that there was not, and made the following order (the Order):
1.The caveats filed on 18 January 2021 and 25 June 2021 cease to have effect.
2. The costs of the plaintiff be paid by the caveators.
3.The plaintiff’s application is referred to the Registrar of Probates for determination.
The caveators filed a notice of appeal from the Order on 11 February 2022 and, on 14 April 2022, Keith JR delivered his reasons for judgment in respect of the Order.[3]
[3]Thomson v Thomson [2022] VSC 194 (‘Thomson v Thomson’).
On 9 May 2022, the Court made orders by consent staying the plaintiff’s application for a grant of probate pending the determination of the appeal.
On various dates between July 2022 and December 2023, the Court made orders by consent adjourning the appeal pending the outcome of the compensation proceeding. On 15 September 2023, that proceeding was transferred to this Court.[4]
[4]Proceeding S ECI 2023 05640.
At a directions hearing in this proceeding on 5 March 2024, counsel for the plaintiff informed the Court that the plaintiff intended to renounce his executorship of the deceased’s estate and that the alternate executor, Ms Talbot, would also renounce. The Court made procedural orders in respect of those matters and fixed a timetable for the filing of submissions and affidavits in respect of the costs of this proceeding.[5]
[5]On 16 August 2024, the Court also made orders that the appeal and the question of costs be determined by the Court as presently constituted on the papers.
On 31 May 2024, the Court made orders granting leave to the plaintiff to renounce his executorship of the deceased’s estate.
Position of the parties
The caveators sought the following orders in respect of costs:
(a)an order that the plaintiff bear his own costs of the probate application without any right of indemnity from estate assets;
(b)that paragraph 2 of the Order be vacated;
(c)an order that the plaintiff pay the caveators’ costs of and incidental to the passing over application on an indemnity basis;
(d)an order that the plaintiff pay the caveators’ costs of and incidental to the appeal on an indemnity basis; and
(e)an order that the plaintiff pay the caveators’ costs of and incidental to the renunciation application on an indemnity basis.
In support of their submissions, the caveators relied upon the affidavit of Oliver Charles LaCaze filed on 30 April 2024.
The plaintiff sought the following orders in respect of costs:
(a)an order that the plaintiff be paid his costs of the application for probate on a standard basis by the estate;
(b)that the plaintiff’s costs of the caveat proceeding be paid on a standard basis;
(c)an order that the plaintiff be paid his costs of the appeal on an indemnity basis by the caveators; and
(d)an order that the caveators pay the plaintiff’s costs in seeking leave to renounce probate on a standard basis.
In support of his submissions in respect of costs, the plaintiff relied upon the affidavit and exhibits therein of Natalie Trinh Vu filed on 17 May 2024.
Legal principles
Unless otherwise expressly provided by an act or by any rules made pursuant to the Supreme Court Act 1986, the Court has a general discretion in respect of costs, including in relation to the administration of estates and trusts. The discretion is to be exercised judicially and in accordance with O 63 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules). The Court may make a costs order in relation to a particular part of a proceeding. [6]
[6]Rule 63.04.
The usual rule is that a successful party to litigation is entitled to an award of costs in its favour, with the unsuccessful party bearing the liability for the costs of the unsuccessful litigation. The usual rule is capable of application in proceedings concerning the administration of estates. The Court may also award costs on an indemnity basis where there are ‘special or unusual’ features which justify the making of such an order.[7]
[7]See Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, [7]-[8].
As will become apparent, the principles relevant in determining the costs of litigation in the absence of adjudication on substantive claims are relevant to some of the submissions advanced on behalf of the caveators. Those principles were summarised by Gray J in Eyre-Walker v Swyrydan (Costs) as follows:[8]
The principles for a determination of costs of litigation in the absence of adjudication of the substantive claims are well established, but not necessarily easy to apply. McMillan J dealt with such issues in a case involving executor removal in Re Howden.[9] It will rarely, if ever, be appropriate to determine the outcome of a hypothetical trial, but the court may consider whether the applicant acted reasonably in commencing the proceeding and the defendant acted reasonably in response to it, and in some cases the court may consider any conduct of the defendant that precipitated the litigation.[10] There may be circumstances in which it is possible for the court to award costs on the basis of a view about the outcome. For example, Burchett J, in One.Tel Ltd v Commissioner of Taxation,[11] referred to cases in which one party, after litigating for some time, effectively ‘surrenders to the other’. And in a famous passage from Lai Qin,[12] McHugh J referred to this possibility as well, saying: ‘… in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried’.[13] However, McHugh J went on to say:[14]
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.
[8][2024] VSC 29, [5].
[9]Re Howden; Howden v Rackstraw [2020] VSC 315 (‘Re Howden’).
[10]Re Howden, [37], [41]; Asta Developments (Aust) Pty Ltd v Amasya Enterprises Pty Ltd [2016] VSCA 186, [18], [24]–[25] (Whelan and Ferguson JJA); Re Minenko; Minenko v Raines [2019] VSC 644, [16] (Moore J); Re Bovill; Bovill v Bovill [2017] VSC 697, [38] (McMillan J).
[11](2000) 101 FCR 548, [6] (‘One.Tel’).
[12]Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 (‘Lai Qin’).
[13]Lai Qin (n 13) 625, quoted by McMillan J in Re Howden at [42].
[14]Ibid.
Consideration
The passing over application
It is convenient to first consider the costs of the passing over application.
That matter has already been the subject of judicial determination in paragraph 2 of the Order which requires the caveators to pay the plaintiff’s costs. Notwithstanding that the Court as presently constituted is not determining an appeal against the Order, the caveators seek that this paragraph of the Order be vacated and replaced by an order that the plaintiff pay the caveators’ costs of the passing over application.
The Order made by Keith JR on 28 January 2022 was perfected when it was authenticated on 2 February 2022. It is well established that, once an order is perfected in a form which accurately expresses the intended form of the order by being authenticated in accordance with the rules of court, the court has no jurisdiction to alter or rescind it, save in particular classes of exceptional circumstances.[15]
[15]See Lollis v Loulatzis & Anor (No 3) [2008] VSC 231, [12] (Kaye J) referring to Bailey v Marinoff (1971) 125 CLR 529, 539–540 (Gibbs J). Kaye J described the exceptional circumstances as involving clarification of the recorded judgment, the making of minor alterations which do not affect the operative or substantive part of the judgment, and circumstances such as fraud or breach of natural justice which impeach the obtaining of the judgment or order.
The caveators do not submit that any of these established categories of exceptional circumstances are here engaged. Instead, they contend that the Order is interlocutory and that there is greater ‘latitude’ in varying interlocutory orders in exceptional circumstances. It was submitted that one such circumstance, engaged in this case, is where an interlocutory order is obtained as a consequence of the non-disclosure of material facts.
The caveators submitted that Keith JR determined the passing over application in the absence of critical material facts: that the plaintiff intended to press further claims on his own behalf and on behalf of a company controlled by him, which claims would need to be adjudicated by the legal personal representative of the deceased estate, and which were not disclosed to the Court. Specifically, the caveators rely upon the assertion by the plaintiff’s solicitors in correspondence on 30 March 2023 that the plaintiff was owed a total of $368,272 from Auscut and the deceased’s estate (the debt claims). It was submitted that these claims gave rise to a profound conflict on the part of the plaintiff in the event that a grant of representation was made to him, and that he had been aware of these claims for some years, but did not press them until after the decision of Keith JR; it was submitted that the first time the plaintiff disclosed the claim in open correspondence was in a letter dated 21 December 2023. Prior to that time, the only debt claims pressed by the plaintiff were for an amount of $24,159.86. The plaintiff refers to the conclusion reached by Keith JR that:[16]
In my view, the due administration of the estate is not prejudiced, or at risk, by the appointment of the plaintiff as executor. Grounds for passing over are not made out as a prima facie case and it is appropriate to dismiss the caveats. … The plaintiff as executor has engaged with the VCAT and the Court processes and has been frank in disclosing the circumstances underlying the administration of the estate. There is no lack of candour or statement of attitude to suggest the estate will not be properly administered by the plaintiff with the interests of the beneficiaries in mind. There is, in my view, nothing to suggest the interests of the estate and its due administration would not prevail with the plaintiff as executor.
Contrary to these observations, the caveators submitted that the plaintiff had not been candid and was in fact profoundly conflicted so as to warrant the vacating of the Order and for the Court to instead order that the plaintiff pay the caveators’ costs of the passing over application.
[16]Thomson v Thomson (n 3) [84].
The authorities relied upon by the caveators in support of the proposition that there is greater ‘latitude’ in varying an interlocutory, as distinct from final, order concern the variation of interlocutory injunctions as a result of the non-disclosure of material facts.[17] Cogent reasons for the extension of the asserted principle to an entirely different type of case such as the present were not advanced. It is, however, unnecessary for me to further consider that matter because I have concluded that the Order is final and not interlocutory in nature.
[17]See Paras v Public Sector Body Head of the Department of Infrastructure (No 2) [2006] FCA 652, [5].
As Callaway JA explained in Dodoro v Knighting[18] (with whom the other four members of the Court of Appeal agreed):[19]
All orders are either final or interlocutory.[20]…The general rule is that an order is interlocutory unless, in the words of Windeyer J in Hall v Nominal Defendant,[21] it “finally determine[s] the rights of the parties in a principal cause pending between them”. Whether it does so is determined by the legal, not the practical, effect of the order.[22]
[18](2004) 10 VR 277.
[19]Ibid [17].
[20]Coles v Wood [1981] 1 NSWLR 723, 726D; Re Luck (2003) 203 ALR 1 [4] (“Re Luck”). An interlocutory order may be made after a final order: see National Australia Bank Ltd v Maher (No 2) [1999] 3 VR 589 generally and, in particular, at 594, [18].
[21](1966) 117 CLR 423, 443.
[22]Licul v Corney (1976) 180 CLR 213; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; Little v State of Victoria [1998] 4 VR 596, 597–8; Bienstein v Bienstein (2003) 195 ALR 225 [25]; Re Luck (n 21), [4].
Consistent with the principles stated by the Court of Appeal in Gardiner v Hughes,[23] the basis of the finding by Keith JR that a prima facie case was not established in respect of the passing over application was his conclusion that the caveators had not established a case for investigation for the plaintiff to be passed over.[24] Such a finding will ordinarily result in the Court ordering, as Keith JR did, that the caveat cease to have effect.[25] In that event, because a case for investigation has not been made out, the caveator will not be joined to the proceeding as a defendant and the grounds upon which the caveat was lodged will not be referred for determination at trial. These are manifestations of the legal effect of the Order which is to quell the dispute between the plaintiff and the caveators. As stated by the Windeyer J in Hall v Nominal Defendant, ‘a final order is one which finally disposes (subject only to appeal) of an action or an existing dispute between parties’.[26] His Honour continued:[27]
The determining factor is the effect of the order in establishing finally or otherwise the rights of the disputant parties—does it put an end to an existing dispute or existing action?
[23][2019] VSCA 198, [41], [80].
[24]Thomson v Thomson (n 3) [84].
[25]See Re Przychodski [2016] VSC 781, [20]. Alternatively, the Court may order that the caveat be dismissed.
[26](1966) 117 CLR 423, 444.
[27]Ibid 445.
Although the plaintiff’s application for a grant of probate remained to be determined after the Order was made, what is determinative is that the Order has the legal effect described by Windeyer J in respect of the caveators’ grounds of objection. The Order is accordingly final in nature and, absent appeal or the application of other established categories of exceptional circumstances, it cannot be vacated or varied as proposed by the caveators.
The probate application
The caveators’ contention that the plaintiff should bear his own costs of the probate application without any right of indemnity from the assets of the estate rests on the proposition that the plaintiff’s belated renunciation ought properly to have occurred before he applied for probate. The caveators first requested that the plaintiff renounce probate on 19 January 2021. The caveators submitted that, as a result of the matters raised in the amended grounds of objection, together with the conflict of interest arising from the debt claims, the plaintiff ought never have applied for probate.
I do not accept this submission. Insofar as it rests on the amended grounds of objection, the argument is unsustainable given that Keith JR found those grounds did not establish a case for investigation as to whether the plaintiff should be passed over. This conclusion is unaltered when regard is had to the debt claims because, as the caveators noted, the plaintiff did not press those claims until well after the decision by Keith JR. Until those claims were pressed, there did not exist circumstances which could be said to have obliged the plaintiff, being the person the deceased nominated to administer his estate, to renounce his position as executor.
The plaintiff is accordingly entitled to be paid from the deceased’s estate his costs of the application for probate determined on a standard basis.
The appeal
In their submissions, the plaintiff referred to various aspects of the history of the proceeding, including an order made with the consent of the parties on 9 May 2022 staying the probate application pending the appeal, and a directions hearing on 15 August 2023, at which time the hearing of the appeal was adjourned to allow time for the compensation proceeding to be determined. The plaintiff contested the relevance of the compensation proceeding to the hearing of the appeal and submitted that, even if the caveators were successful in that proceeding, it would be necessary for them to make an application for leave to rely on new evidence in the appeal pursuant to r 84.10 of the Rules.
The plaintiff laid emphasis on the fact that the appeal had not progressed since it had been filed and that he was a reluctant litigant brought to Court by the caveators following his successful defence of their application to be passed over. It was submitted that he ought not therefore be penalised by an order for costs for defending the appeal.
The plaintiff further submitted that it was not appropriate for the estate to pay his costs of defending an application that is now being withdrawn by the caveators and that instead an order should be made that the plaintiff’s costs of the appeal be paid by the caveators personally.
The plaintiff also submitted that, if the caveators succeeded in obtaining an order that he and Ms Talbot be passed over, the history of hostility between the parties, as well as the compensation proceeding which remained on foot, meant that it was likely that the Court would appoint an independent person to act as administrator of the estate, and not the caveators as sought in their application. The appeal had therefore been a waste of costs and resources and the plaintiff should be paid his costs of responding to it by the caveators personally, and not from the estate.
The features of the interlocutory history of this proceeding on which the plaintiff relied as outlined above are of limited relevance in exercising the discretion in respect of costs of the appeal. The remaining submissions advanced by the plaintiff are also notable for their failure to respond to the caveators’ central submission about the serious conflict of interest said to have arisen once the plaintiff determined to press the debt claims.
I accept the caveators’ submission that the advancement of the debt claims gave rise to a profound conflict on the part of the plaintiff in the event that a grant of representation was made to him. It would mean that, as legal personal representative of the deceased’s estate, he would be obliged to call in the deceased’s shares in Timber Ridge, to transfer those shares into his name as the legal personal representative and to appoint himself as the director of the company. As legal personal representative, he would then be obliged to adjudicate upon debt claims in which he asserts that, between them, Auscut and the deceased’s estate are indebted to him personally in the amount of $368,272. He would be required to undertake this function in circumstances where the debt claims are not routine or straightforward and, according to the caveators, are contestable including, for example, a claim for consulting fees of $145,383.
The nature of the conflict of interest which the plaintiff would confront as executor and claimed creditor of the deceased’s estate is manifest and concerns contestable claims of substantial value.[28] Having determined to press the debt claims in advancement of own private interests, as is his right, it is glaringly untenable for the plaintiff to also seek to administer the estate for the benefit of the beneficiaries, particularly given the antagonistic and litigious relations which have attended the estate of Raymond Thomson for many years, both before and since his passing. As the daughter of the plaintiff, Ms Talbot as substitute executor is similarly compromised.
[28]They are analogous to those discussed in Pizzey v Pizzey [2023] VSC 760, [47] (‘Pizzey’).
For these reasons, applying the principles discussed by Gray J in Eyre-Walker, I accept the caveators’ submissions that, although the outcome of the appeal will not be known, the plaintiff’s profoundly conflicted position is such that the caveators would be overwhelmingly likely to succeed in the appeal in obtaining relief that the plaintiff be passed over.[29] In the events that have occurred, it therefore cannot be said that that the appeal has been a waste of costs and resources. The prospect that an independent person, and not the caveators, would be appointed to administer the estate is of peripheral significance in considering the liability for the costs of the appeal.
[29]See the authorities and principles considered in Pizzey (n 29) [47]-[48].
This analysis is unaffected by the fact that, by operation of r 84.10 of the Rules, it would be incumbent upon the caveators at the hearing of the appeal to obtain leave before relying upon evidence in relation to the debt claims, insofar as that evidence was not before Keith JR. As observed by Kennedy J in Stuart v Mordialloc Sporting Club[30], the discretion to grant leave under r 84.10 is unconstricted and would be considered in the context of a hearing de novo in which the date for determination of relevant facts is the date when the matter comes before a judge on appeal.[31] Given these principles, it is difficult to conceive of any arguable basis as to why, at the hearing of the appeal, leave would not be given to adduce evidence relevant to the debt claims.
[30][2020] VSC 658.
[31]Ibid [39].
For the above reasons, it is appropriate that the plaintiff pay the caveators’ costs of and incidental to the appeal. In circumstances where the Court is exercising its discretion in respect of costs without the appeal being heard and determined, there is no sufficient basis for the Court to be satisfied that there exist features of a special or unusual nature to warrant the award of costs on an indemnity basis. Given my conclusions in relation to the overwhelmingly likelihood of success which the caveators would enjoy in respect of the appeal, it is however appropriate that the plaintiff be responsible for his own costs of the appeal without recourse to the estate.
Application for leave to renounce probate
The caveators seek that the plaintiff pay their costs of the plaintiff’s renunciation application on the basis that the renunciation application ought to have occurred before the plaintiff applied for probate.
I do not accept that submission for the reasons outlined in [33]-[34] above. Further, for the above reasons relating to the appeal, having determined to press the debt claims, it was then incumbent on the plaintiff to renounce probate. That application was then brought in a timely way. It follows that there is no proper basis for the plaintiff to pay the caveators’ costs of the renunciation application. The caveators are, however, entitled to be indemnified by the estate in relation to their costs of the renunciation application.
The plaintiff seeks that the caveators pay his costs in seeking leave to renounce. Although the plaintiff, in September 2021, offered to be passed over as executor and for an independent administrator to be appointed to administrator of the estate, this proposal formed part of an offer which included various other conditions; it is not possible or appropriate for the Court to now fairly appraise whether it was unreasonable for the caveators to reject that offer.
Consistent with the manner in which I have approached the exercise of the discretion in respect of the costs by reference to the separate elements of the remaining controversies between the parties, it is appropriate to do likewise when considering the application for leave to renounce. From that footing, the appropriate course is that the plaintiff’s costs of the renunciation application – which on the caveators’ case should have occurred at the very outset and which would have then been uncontroversial – should be borne by the estate. As the circumstances and timing of that application were principally the result of decisions made by the plaintiff, it is appropriate that those costs be determined on a standard rather than indemnity basis.
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