Walters v Perton (Costs) - [2023] VSC 380

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S CI 2017 02159

LYNNE MARGARET WALTERS	Plaintiff
v
JANE ELIZABETH PERTON (who is sued in her capacity as the Executor of the Will and Trustee of the Estate of Donald Graeme Warring, deceased)	Defendant

- and –

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2018 00225

LYNNE MARGARET WALTERS	Plaintiff
v
JANE ELIZABETH PERTON (who is sued as trustee of the Port Eagle Investment Trust and as Executrix of the Will and Trustee of the Estate of Donald Graeme Warring, deceased)	Defendant
- and –
JANE ELIZABETH PERTON (as Trustee of the Port Eagle Investment Trust)	Plaintiff by Counterclaim
v
LYNNE MARGARET WALTERS	Defendant by Counterclaim

---

JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATES OF HEARING:	14, 17 April 2023
DATE OF JUDGMENT:	6 July 2023
CASE MAY BE CITED AS:	Walters v Perton (Costs)
MEDIUM NEUTRAL CITATION:	[2023] VSC 380

---

ADMINSTRATION OF JUSTICE – Overarching obligations – Where conduct of defendant in proceedings alleged to have contravened overarching obligations – Whether conduct breaches obligations – Whether court should sanction contravention by indemnity costs order – Civil Procedure Act 2010 (Vic) ss 19, 20, 23, 24, 25 and 29.

PRACTICE AND PROCEDURE – Costs – Costs of three related proceedings – Where two substantive proceedings were heard together – Appropriate apportionment across two substantive proceedings – Whether interlocutory costs orders should be vacated – Where one party’s fees significantly exceed the other party’s – Whether appropriate to fix gross sum or order taxation – Whether executor is to be indemnified from estate for costs orders – Costs of proceedings heard together to apportioned equally – Interlocutory orders stand – Costs estimates to be reduced by 15%.

PRACTICE AND PROCEDURE – Costs – Where plaintiff was wholly successful in one proceeding – Where defendant breached obligations of the Civil Procedure Act 2010 – Whether costs to be awarded on an indemnity basis – Costs of Part IV proceeding to be paid on an indemnity basis.

PRACTICE AND PROCEDURE – Costs – Where plaintiff had mixed success in other proceeding – Whether to make adverse costs orders on an issues basis in other proceeding – Whether to discount costs awarded to plaintiff in other proceeding – Costs of TEP proceeding to be paid on a standard basis with further reduction for mixed success – No adverse costs order in respect of issues that did not succeed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R Garratt KC	Nedovic Lawyers
For the Defendant	D Farrands KC L Mills	Darrer Muir Fleiter

HER HONOUR:

Background

These reasons deal with the parties’ costs in three related proceedings between Lynne Walters and Jane Perton. Lynne was the partner of Don Warring, who died on 4 February 2017. Jane is Don’s daughter and the executor of his estate. The three proceedings are:

(a) Lynne’s application for…

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 Walters v Perton (Costs)

Details

AGLC: Walters v Perton (Costs) [2023] VSC 380
Case: [2023] VSC 380
Decision Date: 6 July 2023

CaseChat Overview and Summary

In the matter of Walters v Perton (Costs), the plaintiff sought an assessment of costs following three related proceedings. The substantive matters involved claims under the Trustee for Employees’ Superannuation Act 1990 (Vic) and the Civil Procedure Act 2010 (Vic), as well as a proceeding to enforce a judgment. The defendant, Perton, was alleged to have contravened overarching obligations under the Civil Procedure Act 2010 (Vic) during the proceedings, leading to the plaintiff's application for indemnity costs. The Supreme Court of Victoria was tasked with determining the appropriate allocation of costs, the propriety of interlocutory orders, and the overall distribution of costs between the parties.

The primary legal issues addressed by the court included whether the defendant's conduct breached the overarching obligations under the Civil Procedure Act 2010 (Vic), the appropriateness of an indemnity costs order for the breaches, and the correct apportionment of costs among the three related proceedings. The court also had to decide on the appropriate method for reducing the plaintiff's costs due to mixed success and the necessity of any adverse costs orders for unsuccessful issues. Furthermore, the court needed to determine whether the executor of the estate should be indemnified from the estate for the costs orders.

The court found that the defendant's conduct did contravene the overarching obligations, justifying an indemnity costs order for the proceeding where the plaintiff was wholly successful. For the proceeding where the plaintiff had mixed success, the court ruled that costs should be awarded on a standard basis with a further reduction due to mixed success, and no adverse costs order would be made for the unsuccessful issues. The costs of the three related proceedings were to be apportioned equally, and the interlocutory costs orders were to remain in place. The court also mandated a 15% reduction in the plaintiff's costs estimates. The court did not order the executor to be indemnified from the estate for the costs orders, but rather, costs were to be borne by the estate.

The final orders included an indemnity costs order for the proceeding where the plaintiff was wholly successful, a standard costs order with a reduction for mixed success in the other proceeding, and a 15% reduction in the plaintiff's costs estimates across all proceedings. The interlocutory costs orders were to remain in place, and the executor was not to be indemnified from the estate for the costs orders.

Orders