Zivojin v Babic (No 2) - [2013] VSC 113

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

No. S PRB 2010 11002

MARTIN ZIVOJIN AND ANNA ROBINSON	Plaintiffs
v
OMER BABIC AND STANKA POSTOLOVA	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 FEBRUARY 2013
DATE OF JUDGMENT:	20 FEBRUARY 2013
CASE MAY BE CITED AS:	ZIVOJIN v BABIC (No 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 113

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Practice and Procedure – Costs – Probate – Whether reasonable for plaintiffs to commence proceeding seeking revocation of grant of probate of earlier will of the deceased and grant of probate of alleged later will – Plaintiffs’ application for costs out of the estate refused – Second defendant added despite opposition of plaintiffs – She was widow of the deceased and principal beneficiary under the earlier will – Plaintiffs ordered to pay two sets of costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J K Arthur	Haines & Polites
For the First Defendant	Mr G S Baker	Frank J Sagaria & Associates
For the Second Defendant	Mr R R Boaden	Slater & Gordon

HIS HONOUR:

In the judgment I delivered this morning I held that the application by the plaintiffs, Martin Zivojin and Anna Robinson, for the grant of probate of the December 2005 will to be revoked and instead that there be a grant of probate of the alleged later August 2007 will, failed.

The question then arose as to what would be the appropriate orders for costs. The plaintiffs submit that all parties should have their costs out of the estate on a solicitor and client basis. In the end each of the defendants submitted that the plaintiffs should pay the defendants' costs on a party and party basis and that in addition there should be an order that the first defendant's costs of and incidental to the proceeding be paid or retained out of the estate.

It is trite law that costs are in the discretion of the Court and that the general rule is that costs follow the event. However, there are some exceptions peculiar to probate applications, only some of which are relevant to this proceeding. There is a well recognised exception that if the circumstances reasonably called for an investigation to be made before the Court could properly pronounce in favour of the will a contesting party who fails in such a case should not be required to pay costs and should be left to bear his own costs or, alternatively, that the costs should be allowed out of the estate, as was sought by the plaintiffs in this case.[1]
[1]Spiers v English [1907] P 122, Re Cutliffe's Estate [1959] P 6, and In the Will of Millar [1908] VLR 682.

The question that has been debated this morning is whether it was reasonable for the plaintiffs to attempt to revoke the grant of probate of the December 2005 will and to seek to have the alleged August 2007 will admitted to…

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 Zivojin v Babic (No 2)

Details

AGLC: Zivojin v Babic (No 2) [2013] VSC 113
Case: [2013] VSC 113
Decision Date: 20 FEBRUARY 2013

CaseChat Overview and Summary

In the case of Zivojin v Babic (No 2), the dispute was between several parties contesting the validity and probate of wills concerning the estate of a deceased person. The court was asked to consider whether it was reasonable for the plaintiffs to have commenced proceedings seeking the revocation of a grant of probate of an earlier will and the grant of probate of a later will. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the plaintiffs' decision to initiate proceedings was reasonable and justified, considering the opposition of other parties and the implications for the estate. The court also needed to determine the appropriateness of adding a second defendant to the proceedings despite the plaintiffs' opposition and the consequences of this decision on the distribution of costs.

The court found that the plaintiffs' decision to commence the proceedings was not reasonable, as it did not align with the principles of justice and fairness. The addition of the second defendant, who was the widow of the deceased and the principal beneficiary under the earlier will, was deemed necessary to ensure a fair hearing of the matter. Consequently, the court ordered the plaintiffs to pay two sets of costs, reflecting the unreasonableness of their initial decision to proceed with the case.

The final orders of the court mandated that the plaintiffs pay the costs associated with both the proceedings and the addition of the second defendant. This decision underscored the court's emphasis on the importance of reasonable and justifiable actions in legal proceedings, particularly in matters concerning the probate of wills and the distribution of estates.

Orders