Hartnett v Taylor  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.
- D3 and D4 settle with P and take over P’s case against D1 and D2 (-not)
- Section 18(d) of the Civil Procedure Act 2010 (Vic)
- Preliminary discovery and the need to have an adequate factual foundation before pleading fraud
- Riordan J provides pithy summary of some of the more difficult costs principles
- Duties in relation to costs of solicitors acting for deceased estates
4 Replies to “Executrixes’ denial of deceased’s alcoholism without any proper factual foundation results in indemnity costs order”
I am most heartened to find you fellows having this discussion, naturally my lot is thrown in with Elliott
Gilbert, you’re such a pedant.
“-trixes'” is already pedantry of a half-baked sort.
“-trices” is hedonism.
If I were a true pedant I would have typed “-trices'” .