| 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 |
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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 |
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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.
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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…
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- AGLC
- Walters v Perton (Costs) [2023] VSC 380
- Case
- [2023] VSC 380
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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