Harris v Bennett and O'Brien [2002] VSC 139

Harris v Bennett and O'Brien [2002] VSC 139 - VSC 2002 case summary — Zoe

[69]

Those matters of fact are that the infant plaintiff is 14 years of age; that the value of the estate of the deceased is approximately $12,337,634; that by the terms of his will it appears that the deceased had a son James, three daughters and grandchildren other than the infant plaintiff; that a substantial bequest was made to Francine Werner, who had the aforesaid relationship with the deceased; that counsel for the defendants said that the value of that bequest was some $4.4m; that a bequest was made to his son, James, which counsel for the defendants has said was of the value of some $700,000; that there was some particular bequests and that otherwise, the residue of the estate was to be divided among the deceased's three daughters, which residue was said to be valued at approximately $6.8m. Further, from that affidavit there appears the following facts, that the infant plaintiff lives with her mother; that the infant plaintiff's mother is employed as a nurse, earning approximately $41,250 per annum; that the assets of the infant plaintiff's mother are moderate, which includes a unit in which she and the infant plaintiff live, valued at $280,000 and subject to a mortgage in the amount of $150,000, that she has superannuation in a sum of $28,160 and owns a motor car valued at some $22,000; that pursuant to orders of the Family Court of Australia, James Curtis pays towards the maintenance and support and education of the infant plaintiff $200 per week, school fees for her to attend Firbank Grammar School, and for her to attend interstate and overseas excursions, and the costs of private health insurance; that except for meeting his financial obligations to the infant plaintiff, James Curtis, does not accept her as his child, and has not responded to any endeavour made by the infant plaintiff for him to see her. From that latter matter it is to be inferred, in my view, that it is likely that James Curtis does not and will not regard himself responsible, in any way, for the maintenance and support of the infant plaintiff other than that which he is obliged to pay pursuant to the order of the Family Court of Australia; Further from the affidavit of Joanne Harris the following facts appear - the infant plaintiff has been subject to an auditory perception assessment, which was conducted on 22 August 1996 and which assessment in part identified that her auditory memory processing skills were significantly delayed, and that she had problems with her short term auditory memory; that the infant plaintiff on 14 December 2001, was examined by a psychologist from whose report it appears that the infant plaintiff has difficulty with reading and writing, and that she has been significantly affected by James Curtis' apparent rejection of her, which may cause her to be vulnerable to emotional stresses as she matures through adolescence; and that the deceased had not contributed towards the maintenance of the infant plaintiff before his death.

[99]

(1) that the appeal of the infant plaintiff against the Orders of the Master made on 13 February 2002 is upheld.

(2) that the Orders of the Master made on 13 February 2002 are set aside.

(3) that the summons of the defendants filed on 7 February 2002 is dismissed.

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HIS HONOUR: Yes, are there any submissions as to costs?

MS LYLE: Your Honour, we will seek costs on a solicitor/client basis but I recall Your Honour's remarks of Friday when Mr Boaden, my learned leader Mr Southall said that they were not available today. I think on Friday Your Honour gave an indication that he would be willing to adjourn the question of costs from today. I have spoken to Mr Southall this morning and it was his suggestion that it would take probably half an hour and it might be convenient to list it at 9.30 or ten one morning this week.

HIS HONOUR: Do you agree with that position Ms Noy?

SOLICITOR: Yes, Your Honour.

HIS HONOUR: Leave the question of costs. Very well. It is further ordered: (4) that the question of the costs of this appeal and the summons of the defendants be reserved.

What I will do ladies is to have my Associate communicate with your respective counsel, to select a date one morning so that the question of costs can be dealt with. I will not specifically order it now but it is likely that I will have my Associate indicate when we can select a date, that outlines of submissions be provided but I won't specifically order that now.

SOLICITOR: Your Honour, it is an appropriate time to raise the question of the indemnity certificate now or next week, I'm just wondering if it's an - - -

HIS HONOUR: When you say an indemnity certificate what do you mean?

SOLICITOR: Indemnity certificate in respect of the respondent's costs and - - -

HIS HONOUR: I see, the Appeal Costs Act.

SOLICITOR: Yes.

HIS HONOUR: Perhaps that can also be dealt with Ms Noy when it comes you being unsuccessful in the proceeding, your side being unsuccessful, you wish to make an application for an indemnity certificate then that can be dealt with at the same time as I deal with the costs of proceedings. Are you content with that course. I won't specifically make any order as to it now, but all those questions of costs and any indemnity certificate, or if you wish I can order and just vary that last order: the question of costs of the appeal of the defendants and any matter as to the granting of an indemnity certificate be reserved. Are you content with that?

SOLICITOR: Thank you, Your Honour.

HIS HONOUR: Yes.

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At a glance

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Judgment (108 paragraphs)

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Legislation Cited (3)