Walters v Perton (interest ruling) - [2023] VSC 615

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 GRAME WARRING, deceased)	Defendant

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JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF RULING:	20 October 2023
CASE MAY BE CITED AS:	Walters v Perton (interest ruling)
MEDIUM NEUTRAL CITATION:	[2023] VSC 615

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INTEREST – Whether amount of further provision ordered to be paid pursuant to s 91 of the Administration and Probate Act 1958 constitutes a ‘debt or sum certain’ that was ‘recovered’ in the proceeding – Whether successful claimant a creditor of estate or executor – Whether plaintiff entitled to interest on amount ordered - Supreme Court Act 1986, s 58.

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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:

On 20 June 2023, I published my reasons for judgment in Walters v Perton (No 2).[1] They concerned the quantum of further provision to which Lynne was entitled from the estate of her partner, Don. The order making provision for further maintenance operates as a codicil to Don’s will.[2] I found that Lynne was entitled to a further provision of $1,540,560 from the estate.[3] I concluded that Jane was personally liable to satisfy the order for further provision.[4]
[1][2023] VSC 335.
[2]Ibid [80].
[3]Ibid [73].
[4]Ibid [81].

The order by which Lynne has recovered the further provision is in the following terms:

1.Provision of a pecuniary legacy in the sum of $1,540,560 be made out of the deceased’s estate (the Estate) for the proper maintenance and support of the Plaintiff pursuant to s 91 of the Administration and Probate Act 1958 (Vic).
2.The defendant, in her personal capacity, is responsible for payment of the provision that would be raised against the Bell St property in satisfaction of the Estate’s liability.

On 29 August 2023, in accordance with these orders of the same date, Jane paid the provision.

The parties will shortly seek orders regarding costs in accordance with my reasons dated 6 July 2023. This ruling deals with Lynne’s submission that she is entitled to interest on the further provision pursuant to s 58 of the Supreme Court Act 1986 (Vic) (the Supreme Court Act).

Section 58 of the Supreme Court Act provides:

(1)If in a proceeding a debt or sum certain is recovered, the Court must on application, unless good cause is shown to the contrary, allow interest to the creditor on the debt or sum at a rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 or, in respect of any bill of exchange or promissory note, at 2% per annum more than that rate from the time when the debt or sum 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.

Continue reading Walters v Perton (interest ruling)

Details

AGLC: Walters v Perton (interest ruling) [2023] VSC 615
Case: [2023] VSC 615
Decision Date: 20 October 2023

CaseChat Overview and Summary

In the matter of Walters v Perton, the parties engaged in a dispute concerning the entitlement to interest on a sum ordered to be paid under section 91 of the Administration and Probate Act 1958. The case was heard and determined by the Supreme Court of Victoria. The primary issue before the court was whether the amount of the further provision ordered to be paid constituted a 'debt or sum certain' that was 'recovered' in the proceeding, and consequently, whether the successful claimant was a creditor of the estate or the executor. Additionally, the court needed to decide if the plaintiff was entitled to interest on the amount ordered.

The court examined the legislative framework provided by the Supreme Court Act 1986, specifically section 58, which pertains to the entitlement to interest on debts or sums certain recovered in proceedings. The court considered the language of the statute and the context in which the provision was made. The court found that the amount ordered under section 91 of the Administration and Probate Act 1958 did constitute a 'debt or sum certain' that was 'recovered' in the proceeding. Consequently, the successful claimant was deemed to be a creditor of the estate or the executor. Given this determination, the court ruled that the plaintiff was entitled to interest on the amount ordered, in accordance with section 58 of the Supreme Court Act 1986.

The court's decision clarified the legal position regarding the entitlement to interest in cases where a sum is ordered to be paid under section 91 of the Administration and Probate Act 1958. The ruling provided clarity for future proceedings, ensuring that creditors who successfully recover sums under the Act are entitled to interest as provided by the Supreme Court Act 1986. The court's determination brought finality to the dispute and established a precedent for similar cases. The final orders were made in favour of the plaintiff, entitling them to interest on the amount ordered pursuant to section 91 of the Administration and Probate Act 1958.

Orders