First Plaintiff v First Defendant

2 Judgment on the applications was delivered in June 2015.[1] Following judgment, significant issues arose as to the power of the plaintiffs as limited administrators to enter into a settlement of the proceeding and whether the costs claimed by the parties from the estate were reasonable and proportionate to the issues in dispute, having regard to the overarching obligation of the parties to ensure that the costs are reasonable and proportionate pursuant to s 24 of the Civil Procedure Act 2010.[2]

3 In reasons published on 17 July 2015 in respect of the reasonable and proportionate costs, the Court was no better informed on these aspects of the costs after considering the plaintiffs' written submissions. As a result, the parties were ordered to file affidavits setting out the details of their respective professional costs and disbursements, including the basis of their charges.[3]

4 After a hearing on 14 August 2015, the Court determined that the plaintiffs acted beyond their limited powers in entering into the deed of settlement and should not have entered into it in the circumstances,[4] and the costs claimed by the parties were not reasonable and proportionate to the issues in dispute. In respect of the costs, the parties were to provide a proper assessment of their reasonable and proportionate professional fees and disbursements having regard to the reasons for judgment.[5]

5 As well as being the executors and trustees of the estate of the deceased, the plaintiffs are also principals of the law firm, Best Hooper, acting for the plaintiffs in their roles as the executors and trustees of the estate. Mr Robinson is also the solicitor at Best Hooper representing the estate in the proceeding.

6 The Court expressed concerns as to the potential for conflicts of interest between the interests of the estate and the interests of the plaintiffs as principals of Best Hooper.[6] As executors of the estate, they have duties to act in the best interests of the estate and the beneficiaries. In Robinson v Jones (No 4), the Court found that the plaintiffs failed to scrutinise or object to any of the professional fees and disbursements claimed by Best Hooper or the solicitors for the defendants, Henderson & Ball and Hentys Lawyers, simply taking the position that all of the claimed professional fees and disbursements were reasonable and proportionate.[7]

7 Since delivery of the reasons in Robinson v Jones (No 4), both defendants have notified the Court by email that their costs are no longer an issue for the Court as they do not seek any costs from the estate of the deceased.

8 The first defendant was successful in opposing a grant of representation of the informal document. By email dated 16 May 2016, her solicitors, Henderson & Ball, informed the Court that the first defendant would not seek her costs from the estate of the deceased.

9 The second defendant was a named beneficiary under the informal document. As the application for a grant of probate of the informal document was unsuccessful, it takes no benefit from the estate of the deceased.

10 The second defendant entered into a conditional costs agreement with its solicitors, Hentys Lawyers, for its representation in the proceeding. Liability for costs under the conditional costs agreement was reliant on success in the proceeding. The Court provided a further opportunity to the second defendant to file submissions as to whether it has any liability for the professional fees and disbursements claimed by Henty Lawyers as the second defendant was unsuccessful in the proceeding.

11 By email dated 1 June 2016, Hentys Lawyers informed the Court that it would not make submissions in relation to the conditional costs agreement as the outcome was not successful, as defined in the costs agreement, and would not be enforced. Hentys Lawyers informed the Court that it would not seek for its costs of the proceeding to be paid out of the estate of the deceased.

12 The remaining costs issue concerns the costs of Best Hooper in acting as the solicitors for the plaintiffs.

13 The plaintiffs had provided an itemised bill of costs drawn by Blackstone Legal Costing claiming $141,294.88 to be paid out of the estate. As stated, this amount was not allowed and the plaintiffs were provided with the opportunity to file a further assessment of their reasonable and proportionate costs.

14 By email dated 27 July 2016, Best Hooper filed a further itemised bill of costs dated 15 July 2016 also drawn by Blackstone Legal Costing. This itemised bill claimed a total of $84,679.65 comprising professional fees of $64,402.38 and disbursements of $20,277.27.

15 The plaintiffs rely on the probate costs rules that where probate litigation has been caused, or contributed to, by the way in which a testator made his or her testamentary intentions known, costs are usually ordered to be paid out of the estate.[8] There is no issue that the costs of the proceeding should be paid out of the estate in this proceeding, with the issue being whether the claimed costs are reasonable.

16 The principles governing the power of the Court to order costs are set out in previous judgments in this proceeding.[9] In their capacity as trustees of the estate of the deceased, the plaintiffs submit they are entitled to payment from the estate for their expenses properly incurred and that the quantum as set out in the bill of costs was properly incurred.[10] Costs incurred improperly, for example, where a trustee has acted beyond power, are not recoverable.

17 The Court has broad discretionary powers in determining the costs of a proceeding, with such discretion to be exercised judicially. In exercising the discretion, the consideration of unreasonable claims or excessive claims is relevant. In this proceeding, it was determined that the plaintiffs acted beyond power as administrators under a limited grant of representation.[11] In addition, on the application for a full grant of representation for the informal document, the plaintiffs relied on lengthy affidavits that contained a substantial amount of inadmissible material and material of little probative value in respect of the issues in dispute. The trial took one day and was conducted on the basis of written and oral submissions filed by the parties.

18 The plaintiffs have been provided with many opportunities to provide details of their costs and to justify their claims. Since providing the itemised bill, the Court has sent Mr Robinson a list of queries. In the main, he has provided written responses to those queries. In his responses to the Court, Mr Robinson appears to respond in his capacity as a principal of Best Hooper, rather than in his capacity as one of the executors of the estate. He seeks to justify the quantum in the itemised bill but provides little scrutiny of Best Hooper's claimed costs. He frequently states 'this is a solicitor/client taxation' notwithstanding that the solicitor client basis of taxation no longer applies with changes made to Order 63 of the Supreme Court (General Civil Procedure) Rules 2005 ('the Supreme Court Rules') by the Supreme Court (Chapter 1 New Scale of Costs and Other Costs Amendments) Rules 2012. He also states that 'no party to the proceeding, and no beneficiary, has objected to the costs claimed'. It is not clear what he means by this statement. The only party in the proceeding who is also a beneficiary is the first defendant. Mr Robinson provides no evidence that she has been given the itemised bill. Mr Robinson also provides no evidence that any of the beneficiaries of the estate have been provided with the itemised bill. In any event, a solicitor client taxation would be between the plaintiffs as executors and Best Hooper as their legal advisers whereas in this proceeding the costs are claimed from the estate of the deceased. Costs payable from a fund, such as an estate, are recoverable on the standard basis. Pursuant to r 63.30 of the Rules, costs taxed on the standard basis are all costs reasonably incurred and reasonable in amount.

Consideration of Best Hooper's itemised bill of costs dated 15 July 2016

19 Whether the basis of taxation is the standard basis or the indemnity basis, a legal practitioner for a party to whom costs are payable is entitled to charge and be allowed costs in accordance with the scale charges in Appendix A of the Rules, unless the Court or the Costs Court otherwise orders.[12] The scale charges are exclusive of any GST chargeable. The Supreme Court scale is generous in terms of quantum and is capable of providing for work undertaken in any proceeding that is reasonably incurred.

20 The itemised bill for Best Hooper's costs sets out the charges and disbursements with the items numbered chronologically from 1 to 630, the date the work was undertaken and a description of the work for each item. The itemised bill lacks transparency for some items, contains a number of errors and some costs are misconceived or inappropriate in light of the Court's previous findings.

21 The itemised bill has been substantially reduced from the original claim of $141,294.88 but the claimed quantum remains unreasonable on the basis that particular costs have either not been reasonably incurred, are not reasonable in amount or are not in proportion to the issues in dispute. Other items contain insufficient detail to determine whether the work undertaken was appropriate, related to the proceeding, or was reasonable and proportionate to the issues in dispute.

22 Some of the items queried by the Court were conceded by Mr Robinson, either all or in part, and the remaining items are now determined in these reasons. The schedule attached to these reasons sets out the number and date of the items and any amounts deducted from relevant items. Where any item requires some detailed reasons, those reasons are set out in this judgment under the relevant item number.

23 Rule 9.01 of the Supreme Court (Administration and Probate) Rules 2014 provides for the costs of obtaining a grant of probate on the ad valorem rate. The rate claimed in the itemised bill where the gross value of the estate is $13,694,747.54 is incorrect by an amount of $700. Mr Robinson claims he either miscalculated the ad valorem amount or it is a typographical error. He concedes that $700 should be deducted from the amount of $10,900 claimed in the itemised bill.

24 Mr Robinson concedes the claim of $3,960 is a typographical error and should be $3,520. He states that counsel's hourly rate is $400 plus GST. Accordingly, he says the description in item 36 should now be as follows:

11/9/14 - brief to advice [sic], including conference (1.5 hours), memorandum of advice (2 hours) [both on 27/6/14), conference 27/7 (1 hour), extra reading (2 hours) [total hours - 8]

$3,200 plus GST $320 $3,520

25 The new claim adds up to 6.5 hours, not 8 hours. At the claimed hourly rate of $440 (incl. GST) the quantum is $2,860 (incl. GST). The date of 27 June 2014 is before the issue of the proceeding. There is no detail as to the content of the two advices on 27 June 2014, the reasons for the conferences on 27 June 2014 and 27 July 2014 or the memorandum of advice and extra reading. The descriptions do not enlighten as to whether the work was reasonably incurred or are a reasonable cost. Given that the dates of the claim are proximate to the issue of the proceeding, an amount will be allowed for counsel but reduced due to the errors. From the amount of $3,960 originally claimed, the amount of $1,100 will be deducted being $440 for the arithmetical error and $660 for the error in the hours claimed.

26 The six items dated 1 October 2014 total $224.80. Mr Robinson states the two letters are 'poorly distinguished' by Blackstones. The first letter related to notifying beneficiaries not likely to be made parties to the proceeding and the second letter related to beneficiaries who were likely to be named as parties. The letters were not produced to the Court. The description in the itemised bill is for two letters to counsel and receiving two letters in response from counsel. Prima facie, it is reasonable to notify those beneficiaries referred to and reasonable to notify counsel of this but this is not the claim. In all other respects, the claim is unreasonable and, in any event, the solicitors should not need counsel's advice in the circumstances. The amount of $224.80 will not be allowed and will be deducted.

27 Item 105 is a letter sent 'for sake of completeness' as a result of another letter that invited a response. Mr Robinson claims this was reasonable as between solicitor and own client, and not inter partes. The Rules now have the same test for costs inter partes, costs payable from a fund and costs as between a solicitor and client. The claimed cost must still be reasonably incurred and reasonable in amount. The claim of $37 will not be allowed as it is unreasonably incurred.

28 Items 116 and 117 are described as 'receiving and filing letter by email from second defendant's solicitor as to proceedings issued to recover gifts of deceased to first defendant' and perusing a 1 folio letter. Item 118 is a letter to second defendant's solicitor advising no proceeding has commenced to recover the gifts by the deceased to the first defendant. These items do not relate to this proceeding and are not reasonably incurred. The claim of $73.80 will be deducted.

29 Item 122 is a letter to counsel advising who the first defendant had briefed and that minutes of proposed orders would be provided later that day. Item 123 is a clerical attendance on counsel as to his discussions with counsel for the first defendant for proposed orders and an affidavit of Ms Scott - engaged 2 units. Mr Robinson says that item 122 was a letter to counsel and item 123 was a call from counsel in which he reported his discussions with counsel for the first defendant.

30 The amount claimed for item 123 will be reduced by $28 to reflect that the item was to receive a telephone call.

31 Item 136 is a claim for counsel's fees of $3,960 on 17 October 2014 being a brief to appear and brief on advice. Counsel's fee slip records a brief to appear at $2,200 at $440 (incl. GST) and 'brief on advice etc. (say 4 hours)' at $1,760. The appearance on 17 October 2014 was the first directions hearing in the proceeding. Consent directions were made as to discovery and the filing of affidavits. The items claimed preceding item 136 claim for work done for consent orders made at the directions hearing. Counsel for the Victorian Animal Aid Trust ('VAAT') made a short oral application to add the VAAT as a defendant to the proceeding and the proceeding was adjourned to 13 February 2015.

32 In response to this claim, Mr Robinson refers to the item 19(a)(ii) of the then current Appendix A that allowed a maximum of $2,643 plus GST for 'any other appearance (per half day for time spent in the hearing)'. In respect of the 'brief on advice etc' Mr Robinson states that the hourly rate of counsel is $440 inclusive of GST, that the 'time was actually and reasonably spent, between 11 September and 17 October, conferring and advising in preparation for the hearing on 17 October'.

33 The itemised bill contains multiple charges for arranging the consent orders. The brief fee equates to 5 hours, equivalent to a day in court. This fee is unreasonable for a consent directions hearing. A reasonable fee for junior counsel for a directions hearing in the circumstances would be $990. Mr Robinson's explanation for counsel's further charge of $1,760 does not enlighten as to whether the advice was reasonably incurred or a reasonable amount. The amount claimed for the brief to appear will be reduced by $1,210 and the amount claimed for the advice will not be allowed. The amount of $2,970 will be deducted.

34 Item 163 claims perusing summons of 3 folios and item 169 claims perusing summons dated 3 November 2014. Mr Robinson's explanation is that item 163 refers to perusal of a draft summons before it was issued and item 169 refers to perusal of the sealed copy summons. The claimed items and the explanation are significantly different. Mr Robinson claims it was necessary and reasonable to compare the two documents, it is a composite charge under item 10(a) of the Scale and a solicitor client taxation.

35 The issue is whether the claims are reasonable. Items 9 and 10 of the Scale provide for lower amounts if it is not reasonable to peruse a document. The charges are unreasonable with the issued summons being the perused version at item 163. The second perusal claimed at item 169 is unreasonable and excessive and $55 will be deducted.

36 Item 172 claims an examination of 22 pages of the exhibits to an affidavit filed by the second defendant in an application to the Court of Appeal to add the second defendant to the proceeding. Item 175 claims an examination of 78 pages of the exhibits to a second affidavit filed by the second defendant.

37 In his response, Mr Robinson describes the documents that were exhibited to the second affidavit. Mr Robinson would or should have been familiar with these documents. In respect of the first affidavit, having regard to the application being made, he would also be familiar with the documents exhibited to the first affidavit. Being familiar with the exhibited documents, these documents should not be considered separately as they fall within item 630 being the claim for skill, care and attention. The amounts of $162.80 and $577.20 claimed for examination of these documents will be deducted.

38 Item 181 claims perusal of an affidavit of service. Mr Robinson claims this as a composite fee chargeable under item 8(a) of the Scale and a claim as on a solicitor client taxation.

39 His claim under the Scale is for a document of up to three folios. A charge for perusal of an affidavit of service is unreasonable. At best, a scan charged at $22 may be reasonable. The amount claimed will be reduced by $33.

40 Item 198 claims $110 for engrossing submissions on behalf of the executors. Mr Robinson says that drawing the draft submissions are claimed in item 191 at $550. After the submissions were settled by counsel, Best Hooper engrossed them and claim that amount in item 198. He claims that drawing and engrossing are separate items under the Scale being items 2 and 3 and, as this is a solicitor client taxation, the claim should be allowed.

41 The scale allows for the solicitor to 'engross/approve' counsel's settled draft. A draft is not engrossed before sending it to counsel to be settled. A draft is drawn by the solicitor and sent to counsel to be settled. Item 198 is unreasonable and $110 will be deducted.

42 These items refer to an affidavit sworn by Mr Robinson on 15 December 2014. The affidavit was made after the date for the filing of affidavits by the plaintiff. It sets out certain corrections to his affidavit sworn 28 July 2014 as a result of Mr Robinson having re-read his affidavit, adds to certain matters already deposed to by him in that affidavit without explanation for his failure to include them in his earlier affidavit, deposed to his views as to the deceased's testamentary capacity and invites the Court to consider 'a feature' that had not previously come to his attention.

43 The claims in items 239 to 241 are unreasonable for a number of reasons. The estate should not be charged for corrections to his previous affidavit as the errors should not have been made in the first place. Mr Robinson's views on the testamentary capacity were given little weight for the reasons set out in the judgment.[13] The Court considered the 'feature' referred to by Mr Robinson and noted that no application was before the Court to determine the feature. Nevertheless, the Court considered the matter as it was re-formulated by counsel and determined that the plaintiffs failed to discharge the burden of proof on the issue.[14]

44 Item 256 claims for drawing and engrossing a brief to counsel of 7 folios and item 257 claims an attendance on counsel with brief. Item 280 claims a solicitor's attendance in conference with counsel for 1 hour.

45 Mr Robinson claims that counsel's advice was sought as to whether there might be a partial intestacy or whether the informal document would be admitted to probate or alternatively an annotated copy of the formal will and whether a partial interim distribution could be made. Issues discussed were possible claims by the first defendant under the family provision legislation, under a partial intestacy or the Relationships Act 2008.

46 In respect of items 256 and 257, the issues sought for advice are either not related to the proceeding or were canvassed prior to the proceeding being issued. The issue of whether an annotated copy of the last will would be admitted to probate was not part of the proceeding and issues of possible claims by the first defendant are not part of the proceeding. In respect of item 280, there is no fee slip from counsel for such a conference that records a conference with counsel or a brief to counsel. These claims are unreasonable and should be deducted.

47 Item 292 claims for drawing a draft affidavit of first plaintiff of 3 folios. Item 293 claims a letter by email to counsel enclosing draft affidavit to settle and discussing. Item 294 claims drawing and engrossing brief to counsel to advise and item 295 claims an attendance on counsel with brief.

48 Mr Robinson claims that counsel was briefed to advise on whether the next of kin of the deceased should be contacted, whether there should be a further affidavit from the deceased's medical practitioner and whether there should be a reply affidavit to the affidavit of the first defendant.

49 As with the earlier conference on 28 January 2015 claimed at item 280, there is no fee slip from counsel for the conference that records a conference with counsel or a brief to counsel. This second conference is said to have been on 2 February 2015. There are inadequate records to support these claims, the claimed affidavit was never sworn and the items that cover issues in the proceeding were previously the subject of earlier claims. These items are unreasonable and not reasonably incurred and will be deducted.

50 Item 355 claims $378 for the solicitor's attendance at Court on 13 February 2015 instructing counsel for one hour or part thereof, however, Mr Robinson has conceded it was wrongly allocated in the itemised bill as a disbursement.

51 Prior to the date for the directions hearing, the parties provided proposed consent orders that included the filing of further affidavits. At that stage, the plaintiff had not complied with an order made on 20 October 2014 for the filing of affidavits in reply by 12 December 2014. Items 302 to 314 and 315 to 329 are claims referable to obtaining consent orders for an adjournment and amount to around $960 and should have not been necessary in those circumstances. What should have been discussed were orders extending the date for filing the affidavits in reply and listing the proceeding for trial.

52 The Court informed the parties that the proposed consent orders would not be made. In communicating with the parties regarding any directions to be made, parties are always informed that an appearance is required unless they are informed to the contrary. Item 330 and 331 refer to the Court's email informing the parties that it would not make the proposed orders. With the only outstanding order being the filing of the plaintiff's reply affidavit, orders were made extending the date for compliance with the original order, for the exchange of submissions and listing the proceeding for trial.

53 The directions hearing was uncomplicated. The solicitor was present in Court and was available for the directions. Item 355 wrongly claimed as a disbursement will be added back in the itemised bill as a professional fee. Item 356 is a claim for counsel's fee of $2,000 for an appearance on 13 February 2015. In the circumstances of the directions hearing, it is unreasonable to claim counsel's fee and, in any event, the quantum of counsel's fee is unreasonable for such a hearing. The amount of $2,000 will be deducted.

54 Item 460 claims a solicitor's attendance at the Court on 17 April 2015. Item 463 claims drawing and engrossing draft order to be handed up 20 April 2015. Item 464 claims a letter to the parties enclosing draft order. Item 465 claims counsel's fees of $1,210 for an appearance on 17 April 2015. The trial of the proceeding was listed on the following Monday, 20 April 2015.

55 On 17 April 2015, the proceeding was not listed for the Friday directions hearing. Counsel announced their appearances to inform the Court that a settlement had been reached with the first defendant and that the case would proceed without an appearance for the first defendant but with the written submissions of the first defendant being filed.

56 Despite not being listed on 17 April 2015, claims are made by the solicitor of $378.00 and counsel of $1,210. The appearance of counsel and attendance by the solicitor were unreasonable in such circumstances and these items are not reasonably incurred. The amounts of $378.00 and $1,210.00 will be deducted. Notably, counsel also charged a brief fee of $4,400 for his appearance at trial on 20 April 2015.

57 Drawing and engrossing a draft order to be handed up on 20 April 2015 was unreasonable where the trial was to be heard and determined and the outcome of the trial was unknown. It was also unreasonable to forward the draft order to the parties in those circumstances. The amounts of $201 and $38 will be deducted.

58 The hearing on 14 August 2015 concerned two discrete issues. Subsequent to the hearing on 14 August 2015, judgment was delivered in respect of both issues in Robinson v Jones (No 2)[15] and Robinson v Jones (No 3)[16] respectively. The itemised bill contains many items associated with the hearing on 14 August 2015.

59 Mr Robinson was requested to identify the items in the itemised bill associated with the hearing on 14 August 2015 and provide an explanation as to the basis for claiming any of those costs. He did not identify the relevant items but gave the following explanation:

There was a hearing on 14 August 2015, and we attended it. Work was done, in preparation for that hearing, as the Court had directed that certain information and documents be provided for it. This is a solicitor/client taxation.

60 As this explanation was inadequate, the Court made a further request but Mr Robinson did not respond. Another request was made and there was still no response.

61 The items associated with the hearing on 14 August 2015 result from the multiple failures by the plaintiffs and the costs of and incidental to that hearing now claimed in the itemised bill are not reasonably incurred. The reasonable costs of the hearing resulting in the judgment in Robinson and Jones (No 2) will be allowed, however, the costs associated with the hearing on 14 August 2015 should not be allowed. This hearing was the second opportunity for the plaintiffs to explain themselves as to their power to enter into the deed of settlement and the preparation and investigation of the claimed costs from the estate. The costs associated with the hearing on 14 August 2015 should not be recoverable from the estate as they cannot be said to have been reasonably incurred in the proceeding.

62 In respect of the costs issues, the Court was unable to assess the costs of the defendants because the plaintiffs failed to scrutinise their claims. The plaintiffs also provided inaccurate and misconceived information for their own costs and claimed their costs on a time basis rather than under the Scale. This was unnecessary and careless and failed to provide proper information regarding their own costs claimed in the proceeding_._ Allowances for the claimed costs in respect of the power of the plaintiff to enter into the deed of settlement should likewise not be allowed from the estate.

63 The likely claimed items that relate to the hearing on 14 August 2015 can be identified by date and description and do not include any disbursements. They are items 531 to 541, 544, 546 to 570, 574 to 585, 588 to 593, 603 to 605, 610 to 617, 622 and 626 to 629. The total of these items is $5,995.24 and will be deducted from the professional charges in the itemised bill.

64 The plaintiffs claim a loading of $9,757.94 calculated at 20 per cent of the amount of $48,789.68. This is the total of the professional fees and the claimed ad valorem amount of $10,900 in item 1. A solicitor may charge an amount in addition to the ad valorem amount for any fees, charges or expenses reasonably incurred or for special or unusual work.[17] Item 17 of the Supreme Court Scale provides for a loading that may be factored into a bill of costs but it is a discretionary item in the amount allowed. A notice by the Costs Court in February 2016, given as guidance to the profession, provides that in respect of skill, care and attention, the Court will consider the matters in r 63.38 of the Supreme Court Rules and item 17 of the Scale including work already allowed, research and allowances made for counsel. The notice provides that a percentage amount allowed for this item is commonly within the range of 0 to 15% of the total of professional charges.

65 A loading of 20 per cent is well over the higher end of the range for a claim for skill, care and attention. It is unreasonable in this proceeding where the plaintiffs relied heavily on counsel throughout the proceeding, with counsel providing advice and undertaking the preparation of documents. As noted, lengthy affidavits contained inadmissible matters and were not of probative value. The proceeding has also resulted in further judgments as a result of the plaintiffs' failure to scrutinise properly the costs claimed by the parties in the proceeding. At most, a loading of half the range will be allowed, that is, a percentage of 7.5 per cent on the allowed items. No loading is allowed on the ad valorem amount in Item 1 of the itemised bill. The amount of the allowed professional fees, excluding the ad valorem rate, and adding back item 355 at $378.00 as a professional fee, makes a total of $28,317.24. The loading calculated at 7.5 per cent on that amount is $2,123.79. This means that the amount of $9,757.94 claimed in the itemised bill will be reduced by $7,634.15.

66 The final item in the itemised bill has no item number and is a claim for GST of $5,854.76. This amount has been claimed on the total quantum of $58,547.62 for the professional fees claimed in the itemised bill and includes the ad valorem rate incorrectly claimed at $10,900 in item 1.

67 The Appendix to the Supreme Court Rules does not specify whether GST is inclusive of the amounts listed for the ad valorem amounts. In the previous Supreme Court (Administration and Probate) Rules 2004, the amounts provided in the Appendix to those Rules were GST inclusive. The amounts listed in the 2014 Rules remained unchanged when compared with the 2004 Rules. Accordingly, there is difficulty in claiming that amounts are exclusive of GST under the 2014 Rules. The GST should not be claimed on the ad valorem rate.

68 The quantum of the professional fees, including the loading for skill, care and attention, but excluding the ad valorum amount, is now assessed at $30,441.03. The GST on that quantum of professional fees is $3,044.10. The amount of $5,854.76 claimed in the itemised bill will be reduced by $2,810.66.

Deducted (for the purposes of calculating skill and care loading and GST)

Allowed in as a professional cost rather than a disbursement

Correct ad valorum rate included to calculate total professional costs

Includes the deduction of item 355 as it has been added to professional costs

Total professional costs allowed of $43,685.13 plus total disbursements allowed of $12,619.27.

69 The first itemised bill of $141,294.88 claimed by the plaintiffs to be paid out of the estate was rejected as being not reasonable and proportionate. The second itemised bill of $84,679.65 was a substantial reduction, however, for the reasons set out, was not reasonable and proportionate. The plaintiffs' costs that are allowed will be fixed at $43,685.13 for professional fees and $12,619.27 for disbursements, making a total of $56,304.40 to be inclusive of GST. The costs of this assessment and ruling are to be borne by the plaintiffs personally, without recourse to the estate of the deceased.

70 In respect of the defendants, orders are unnecessary as they do not seek their costs from the estate.

Costs of obtaining grant of probate in accordance with the Supreme Court (Administration and Probate) Rules 2014 where gross value of estate is $13,694,747.54

Counsel's fees for advice including conference, memorandum of advice, supplementary memorandum of advice and conference, extra reading of items

Letter to Ms Morris Flynn (sic) enclosing affidavits filed and served this day

Letter to Aughtersons Solicitors advising plaintiff's solicitors agree their client need not be represented at hearing and only notified for sake of completeness

Email to counsel enclosing orders dated 20/10/14 and requesting if beneficiaries should be provided with copy

Examination of exhibits (22 pages) to affidavit claimed in 171

Examination of exhibits (78 pages) to affidavit claimed in 173

Solicitor's attendance on counsel as to appeal - solicitor engaged 1 unit

Solicitor's attendance in conference with counsel - engaged 2 hours or part thereof

Engrossing supplementary affidavit of first plaintiff - 8 folios

Solicitor's attendance to swear affidavit - engaged 1 unit

Solicitor's attendance in conference with counsel - engaged 1 hour

Drawing draft affidavit of first plaintiff - 3 folios

Letter by email to counsel enclosing draft affidavit to settle and discussing

Clerical attendance to execute consent orders - clerk engaged 1 unit

Solicitor's attendance at Supreme Court instructing counsel - solicitor engaged 1 hour or part thereof

Conceded as not a disbursement but add in as a professional fee.

Clerical attendance to obtain cheque for notice of trial fee - clerk engaged one unit

Solicitor's attendance at Supreme Court instructing counsel - solicitor engaged 1 hour (or part thereof)

Drawing and engrossing draft order to be handed up 20 April 2015 - 3 folios

Loading for skill care and attention on work under undertaken - 20% of $48,789.68

[1] Robinson v Jones [2015] VSC 222 (1 June 2015).

[3] Robinson v Jones (No 2) [2015] VSC 334 (17 July 2015) [39]-[40].

[4] Robinson v Jones (No 3) [2015] VSC 508 (20 November 2015) [35].

[5] Robinson v Jones (No 4) [2016] VSC 160 (15 April 2016) [64].

[6] Robinson v Jones (No 4) [2016] VSC 160 (15 April 2016) [34], [62].

[8] Murdocca v Murdocca (No 2) [2002] NSWSC 505 (25 June 2002); Warton v Yeo [2015] NSWCA 115 (7 May 2015); Fielder v Burgess [2014] SASC 98 (7 August 2014); Re Buckton; Buckton v Buckton [1907] 2 Ch 406, 414.

[9] Robinson v Jones (No 4) [2016] VSC 160 (15 April 2016) [27], [29].

[10] National Trustees Executors & Agency Company of Australasia Ltd v Barnes [1941] HCA 3; (1941) 64 CLR 268; Dimos v Skaftouros [2004] VSCA 141 (20 August 2004) (Dodds-Streeton AJA).

[11] Robinson v Jones (No 3) [2015] VSC 508 (20 November 2015).

[12] Supreme Court (General Civil Procedure) Rules 2005, r 63.34.

[13] Robinson v Jones [2015] VSC 222 (1 June 2015) [131].

[15] [2015] VSC 334 (17 July 2015).

[16] [2015] VSC 508 (20 November 2015).