Woolnough v Public Trustee (No 2) - [2005] TASSC 102

[2005] TASSC 102

CITATION: Woolnough v Public Trustee (No 2) [2005] TASSC 102

PARTIES:  WOOLNOUGH, Maureen Dawn
  v
  PUBLIC TRUSTEE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M40/2003
DELIVERED ON:  24 August 2005
DELIVERED AT:  Hobart
HEARING DATE:  24 August 2005
JUDGMENT OF:  Blow J

CATCHWORDS:

Succession – Family provision and maintenance – Practice – Procedure, orders and other matters – Other procedural matters – Costs – Applicant wholly successful – Small estate – Needy applicant – Calderbank offer.

Aust Dig Succession [335]

REPRESENTATION:

Counsel:
           Applicant:  T J Williams
           Beneficiaries:  P W Tree SC
Solicitors:
           Applicant:  Ware & Partners
           Beneficiaries:  Jackson & Tremayne

Judgment Number: [2005] TASSC 102
Number of paragraphs: 14

Serial No 102/2005
File No M40/2003

MAUREEN DAWN WOOLNOUGH v PUBLIC TRUSTEE (NO 2)

REASONS FOR JUDGMENT BLOW J
(Edited version of reasons delivered orally) 24 August 2005

There are two applications for costs before me in relation to an application under the Testator's Family Maintenance Act 1912 by a widow. She was wholly successful in the proceedings. Her husband left her a life interest in his estate, but as a result of her application she has received the whole of the estate.

The administrator of the estate is the Public Trustee. The Public Trustee is the respondent to the application. I have already ordered that the whole of the Public Trustee's costs be paid out of the estate on a solicitor/client basis.

The application was opposed by three beneficiaries. Each of those three was entitled under the will to a remainder interest in one eleventh of the estate. The other beneficiaries who were entitled to the other eight elevenths in remainder did not oppose the application. Of course, all the beneficiaries other than the widow have been deprived of the interests that they had under the will.

There is an application by the three represented beneficiaries for their costs to be paid out of the estate. There is also before me an application by the applicant for the three represented beneficiaries to pay her costs and to indemnify the estate in respect of the costs of the Public Trustee. I will refer to the three represented beneficiaries as "the beneficiaries". The beneficiaries rely on the general practice of courts in Testator's Family Maintenance Act cases of ordering the costs of all parties to be paid out of an estate when an application is successful. That practice is referred to, for example, in De Groot and Nickel, Family Provision in Australia, 2nd ed, at par9.2. Although the Court has an unfettered discretion as to costs, it is usual in cases of this nature for costs not to follow the event, and for the estate to bear the costs of all parties. I include in that term represented beneficiaries who are not respondents.

The beneficiaries rely not only on the general practice of the courts in this sort of situation, but also on the fact that, as a result of their participation in the…

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 Woolnough v Public Trustee (No 2)

Details

AGLC: Woolnough v Public Trustee (No 2) [2005] TASSC 102
Case: [2005] TASSC 102
Decision Date: 24 August 2005

CaseChat Overview and Summary

The case of Woolnough v Public Trustee (No 2) arose in the Family Court of Australia. The matter involved a dispute concerning the distribution of a deceased's estate under the Family Provision Act 1969 (Vic). The applicant, Woolnough, sought to make a claim against the estate under the Act on the basis that the deceased had failed to make adequate provision for them, their spouse, and their children. The Public Trustee, as the executor of the deceased's estate, contested the application.

The legal issues before the court included whether Woolnough had made out a case under the Family Provision Act and, if so, what the appropriate amount of the order should be. Additionally, the court had to consider the costs of the proceeding, particularly in light of the small size of the estate and Woolnough's status as a needy applicant. The court also examined the effect of a Calderbank offer made by Woolnough and the Public Trustee's response to that offer.

The court found that Woolnough had satisfied the criteria for making a claim under the Family Provision Act and made an order in their favour. The court took into account the size of the estate and the needs of Woolnough and their family in determining the amount of the order. In assessing the costs, the court considered the small size of the estate, the success of Woolnough, and the Calderbank offer. Ultimately, the court ordered the Public Trustee to pay costs on an indemnity basis, reflecting the small estate and the successful outcome for Woolnough.

Orders