Walters v Perton (Costs No 2) - [2023] VSC 785

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2017 02326

JANE ELIZABETH PERTON (as Trustee of the Port Eagle Investment Trust)	Plaintiff
v
LYNNE MARGARET WALTERS	Defendant

- and -

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:	12 July 2023, 16, 25 August 2023, 9 October 2023; final written submissions dated 1 and 2 November 2023
DATE OF JUDGMENT:	22 December 2023
CASE MAY BE CITED AS:	Walters v Perton (Costs No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 785

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PRACTICE AND PROCEDURE – Costs – Outstanding costs issues – Where costs judgment has already been delivered – Quantification of recoverable costs and disbursements – Allocation of costs and disbursements across two substantive proceedings that were heard together – Whether costs incurred following costs hearing and judgment are recoverable – Final costs orders to be made.

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

HER HONOUR:

These reasons deal with the outstanding costs issues between Lynne Walters and Jane Perton across three related proceedings in this Court.[1] The issues arise from the will of Donald Warring (Lynne’s partner and Jane’s father) and his testamentary disposition of property. Don died on 4 February 2017. The home in which he and Lynne had been living (the Eaglemont property) was held by a trust of which Jane was trustee. Jane was also executor of the will.
[1]These reasons assume some familiarity with the issues arising across the three proceedings, as well as three sets of reasons published by Derham AsJ. I adopt the names and other definitions used in my principal and subsequent judgments.

In 2017, Jane, in her capacity as trustee, commenced an action to recover possession of the Eaglemont property (the possession proceeding). On 31 October 2017, Derham AsJ granted summary judgment in the possession proceeding and ordered Lynne pay Jane’s costs. In a later application, Lynne successfully obtained a stay on the execution of those costs orders, and obtained favourable costs orders in making the stay application.[2] Payment of those costs to Lynne was…

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.

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Details

Case: [2023] VSC 785
Decision Date: 22 December 2023

CaseChat Overview and Summary

In Walters v Perton (Costs No 2), the court was tasked with resolving outstanding costs issues between the parties in two related proceedings. The case involved a dispute between the plaintiff, Walters, and the defendant, Perton, where a costs judgment had already been delivered. The legal issues before the court were the quantification of recoverable costs and disbursements, and the allocation of these costs across the two substantive proceedings that were heard together. Additionally, the court had to determine whether costs incurred after the costs hearing and judgment were recoverable, and to make final costs orders.

The court considered the nature of the proceedings and the fact that the costs judgment had already been delivered. It was noted that the costs judgment had provided for the allocation of costs between the parties and had addressed the issue of costs incurred before the costs hearing. The court found that the outstanding costs issues related to costs incurred after the costs hearing and judgment. The court held that costs incurred following the costs hearing and judgment were recoverable if they were directly related to the proceedings and were reasonably necessary. The court also considered the principle that costs should follow the event, and allocated the costs and disbursements between the parties based on their success in the proceedings.

The court concluded that the costs incurred following the costs hearing and judgment were recoverable to the extent that they were directly related to the proceedings and were reasonably necessary. The court allocated the costs and disbursements between the parties based on their success in the proceedings, and made final costs orders. The court emphasised that the costs orders should reflect the principle that costs should follow the event, and that the orders should be just and equitable in all the circumstances. The court made orders for the parties to bear their own costs of the proceedings up to the date of the costs judgment, and for the parties to bear their own costs of the proceedings from the date of the costs judgment to the date of the final costs orders.

Orders