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Executrixes’ denial of deceased’s alcoholism without any proper factual foundation results in indemnity costs order

October 15th, 2014 · 4 Comments

Hartnett v Taylor [2014] VSC 501 was a Part IV claim for testators’ family maintenance.  The defendant executrixes said that the plaintiffs’ conduct led to estrangement from the deceased and to the deceased’s alcoholism.  The plaintiffs said that the deceased’s alcoholism led to their estrangement, and that is what Sifris J found.  The defendant executrixes’ contention was one which was contradicted by their own witness, the deceased’s doctor, who said that the deceased was an alcoholic before the estrangement with the plaintiffs.  Sifris J said:

’12 It is in my view clear that the defendants’ evidence and contentions in relation to the deceased’s alcohol consumption and the estrangement from the plaintiffs were made in wilful disregard of known facts and were allegations which ought never have been made. This provides a sufficient basis for an order for indemnity costs notwithstanding that the defendants are not personally liable for such costs.’

Regrettably, the plaintiffs do not appear to have argued the case under s. 18(d) of the Civil Procedure Act 2010.  I say ‘regrettably’ because it is desirable that a coherent and easily accessible body of law about the costs consequences of the making of allegations without a proper factual foundation grow up around the new statutory provision.

Then Sifris J denied the second defendant her costs of being separately represented, since there was no need for the two executrixes to have separate representation.

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Tags: Alleging fraud & misconduct · Civil Procedure Acts · Ethics · litigation ethics · Party party costs