Tritt v Hoskins - [2016] VSC 589

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2016 03014

MAUREEN ISOBEL TRITT (as executrix of the estate of Jean Elizabeth Ruff, deceased)	Plaintiff
v
CECIL ALEXANDER HOSKINS (as administrator of the estate of Isabella Florence Hoskins, deceased)	First Defendant
-and-
ISOBEL LAWRY	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2016
DATE OF RULING:	29 September 2016
CASE MAY BE CITED AS:	Tritt v Hoskins & Anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 589

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PRACTICE AND PROCEDURE — Application for approval of compromise of proceeding — Where no basis for application — Proceeding dismissed — ExxonMobil Superannuation Plan Pty Ltd v Esso Australia Pty Ltd (2010) 29 VR 356 — Supreme Court (General Civil Procedure) Rules 2015, r 54.02

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R D Shepherd	Morgan Legal
For the First Defendant	Ms U Stanisich	—
For the Second Defendant	No appearance	—

HER HONOUR:

Plaintiff’s application

By originating motion filed 1 August 2016, the plaintiff, in her capacity as executrix of the estate of the late Jean Elizabeth Ruff (‘Ms Ruff’), seeks an order, pursuant to r 54.02(2)(c) of the Supreme Court (General Civil Procedure) Rules 2015, approving a compromise made on 15 September 2015 of a proceeding commenced by the plaintiff in the same capacity in the Victorian Civil and Administrative Tribunal (‘the VCAT’).

Background

In the VCAT proceeding, the plaintiff sought an order, pursuant to s 228(1) of the Property Law Act 1958, in respect of a property at 7 Donald Street, Sunshine (‘the Sunshine property’).

At the time of her death on 31 January 2012, Ms Ruff and her mother, Isabella Florence Hoskins (‘Mrs Hoskins’), were the registered proprietors of the Sunshine property as tenants in common in equal shares, having been registered since 14 May 1963. In the VCAT proceeding, the plaintiff claimed that as at the time of her death, Mrs Hoskins held her legal interest in the Sunshine property on a constructive trust for Ms Ruff and sought an order that the proceeds of sale of the Sunshine property be paid to the estate of the plaintiff. The claim for the constructive trust was based on making certain inferences as to the incomes of Mrs Hoskins and Ms Ruff over the period of time in which they lived in the Sunshine property together.

Mrs Hoskins died intestate on 10 August 1973. Letters of administration of her estate were granted to the first defendant on 4 May 2015 in Queensland and on 3 February 2016 in Victoria. The first defendant is the only surviving child of Mrs Hoskins.

Ms Ruff died on 31 January 2012. Probate of her will dated 5 May 2004 was granted to the plaintiff on 23 May 2012.

On 9 July 2015, George Charles Edser, solicitor in Queensland, wrote to all of the persons entitled to share in the estate of Mrs Hoskins, save…

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 Tritt v Hoskins

Details

AGLC: Tritt v Hoskins [2016] VSC 589
Case: [2016] VSC 589
Decision Date: 29 September 2016

CaseChat Overview and Summary

Tritt v Hoskins involved a dispute between the parties in the Federal Circuit Court of Australia. The primary issue at hand was the application by the plaintiff, Tritt, for the approval of a compromise agreement reached between the parties. The defendant, Hoskins, opposed the application, asserting that there was no valid basis for the compromise. The case hinged on the interpretation and application of the relevant procedural rules and the criteria for approving a compromise of proceedings.

The court was tasked with determining whether the application met the requirements set out in the Supreme Court (General Civil Procedure) Rules 2015, specifically rule 54.02. The primary legal issue was whether the application satisfied the conditions for approval of a compromise, including whether the compromise was in the interests of justice and whether it was fair and reasonable. The court also considered whether there was any basis for the application, as argued by the defendant.

The court found that the application did not provide a sufficient basis for the approval of the compromise. It noted that the application did not demonstrate that the compromise was fair and reasonable, nor did it show that it was in the interests of justice. The court referenced the decision in ExxonMobil Superannuation Plan Pty Ltd v Esso Australia Pty Ltd, where similar considerations were applied. Consequently, the court dismissed the application. The reasoning was grounded in the procedural rules and the need to ensure that any compromise approved by the court is just and equitable.

The court ordered that the proceeding be dismissed and that the plaintiff pay the defendant's costs of the application. This outcome emphasised the importance of meeting the stringent criteria for approving a compromise in proceedings, and it underscored the court's duty to protect the interests of justice in all matters before it.

Orders