Plaintiff v Defendants

IAN DOUGLAS BOVILL (in his personal capacity and as co-executor of the Estate of the Deceased)

CHRISTOPHER SCOTT BOVILL (as co-executor of the Estate of the Deceased)

ROSS WILSON BOVILL (as co-executor of the Estate of the Deceased)

ROSWAL NOMINEES PTY LTD (ACN 005 077 805) (as trustee for the Bovill Family Trust)

1 Sheila Rosslyn Bovill died on 21 November 2010. Her four children, the plaintiff, the first defendant, the second defendant and Heather Bovill survived her. The third defendant is the trustee of the Bovill Family Trust. The current directors of the third defendant are the second defendant and Heather Bovill. The plaintiff and the first and second defendants are the current guardians and appointors of the Bovill Family Trust. The fourth defendant, Bovill Pty Ltd, is the family company and a corporate beneficiary of the family trust. The first and second defendants are the current directors of the fourth defendant.

2 By her will, the deceased left her residuary estate in equal shares to her four children and established testamentary trusts for each of her children. By her codicil, after certain specific bequests, the deceased devised property at Tura Beach in New South Wales to the plaintiff as part of his share of her estate. The deceased valued this share at $600,000 and this amount was to be deducted from the one quarter of her estate that is to set up the plaintiff's testamentary trust.

3 Probate of the deceased's will dated 7 December 2005 and codicil dated 2 December 2007 was granted to the plaintiff and the first defendant on 24 June 2011, with leave reserved to the second defendant and Heather Bovill. In June 2012, the second defendant also proved the deceased's will and codicil, pursuant to the leave reserved to him, prompted by difficulties between the plaintiff and the first defendant over the distribution of the estate. Even with a third executor for the estate, difficulties with the plaintiff continued that were elaborated upon in the affidavit of the second defendant.

4 These difficulties continued between the three siblings over the years and concerned the administration of the estate, the family trust and the business operated by the fourth defendant. The second defendant deposed that discussions took place by email over time between the siblings and he considered the plaintiff adopted a difficult approach to the practical management of the estate. The plaintiff made many and detailed requests for documents and explanations concerning the estate and other family entities and he put forward proposals for distribution. The defendants made various proposals to the plaintiff over the years for the distribution and management of the estate and other family assets over the ensuing years. The defendants found the plaintiff's proposals difficult, confusing and complex. They sought advice about the proposals from the estate accountant. His opinion was the proposals were unnecessary for such a simple estate and created uncertainty with tax liabilities. These difficulties were not resolved and the plaintiff issued this proceeding.

5 The plaintiff claims that the defendants have not adequately answered his queries and concerns in relation to the administration of the estate and other family assets.

6 The defendants dispute his claims and the need for the proceeding as he has already been given the documents and information sought in the proceeding, save for copies of each and every receipt, invoice, accounting ledger and cheque butt, none of which had previously been requested before the proceeding was commenced by the plaintiff.

7 By originating motion and summons filed 19 September 2016, the plaintiff sought production of broad categories of documents and financial records from the defendants. There is no issue about the plaintiff's standing in the proceeding as he is a beneficiary of the deceased's estate, a beneficiary and guardian of the Bovill Family Trust and a former director of the fourth defendant.

8 The broad category of documents and records sought included records of the family trust dating back to before the deceased's death, an affidavit setting forth an account of the administration of the estate of the deceased, and production of accounts and records of the fourth defendant as follows:

1. That the first and second defendants produce the following documents to the plaintiff:

(a) An affidavit setting forth the financial position of the Estate recording all receipts, payments and loans from and to the Estate since 24 June 2011 (the date which [sic] probate was first granted);

(b) All primary documents informing the preparation of the affidavit, including but not limited to any bank statements, tax returns, cheque stubs, share transfers, invoices and receipts for expenses and vouchers or receipts for all electronic funds transfers or other payments from the Estate;

(c) Any agreement (such as loan agreements) or instruments entered into in the name of the Estate or any of the executors of the Estate (in that capacity); and

(d) All title deeds, share certificates and any other document recording or otherwise evidencing title to the Estate property.

1. The third defendant produce the following to the plaintiff:

(a) The complete accounts of the Bovill Family Trust (Trust) for the financial years ending 1 July 2010 to date;

(b) Each of the written accounting reports required to be prepared by the Trustee pursuant to clause 14 of the Deed of Settlement dated 14 June 1975 (Trust Deed) for each of the financial years ending 1 July 2010 to date (which consists of a balance sheet, a statement of receipts and disbursements and a list of assets held at the close of each year) (Reports);

(c) All primary documents informing the preparation of the Trust's accounts (including the Reports), including but not limited to any bank statements, tax returns, cheque stubs, share transfers, invoices and receipts for expenses, and vouchers or receipts for all electronic funds transfers or other payments from the trust fund; and

(d) Documents recording or otherwise evidencing the exercise by the Trustee of any of the powers specified in clause 19(c) of the Trust Deed.

1. The Fourth Defendant produce the books and financial records of Bovill Pty Ltd for inspection by the plaintiff.
2. For all or any of the aforesaid, all further appropriate and consequential orders, directions, accounts and inquiries.

9 On the day before the first return date for the first directions hearing on 11 November 2016, the parties submitted minutes of proposed consent orders granting the relief sought in paragraphs 2 to 4 of the plaintiff's originating motion and an order that the third defendant file an affidavit as to the financial position of the family trust and adjourning the proceeding to 9 December 2016.

10 As a result of the consent orders, the substance of the relief sought by the plaintiff was achieved on the first return date by consent.

11 The first outstanding issue to be determined is the question of costs of the proceeding and the second is whether the plaintiff should be able to continue the proceeding against the defendants under the rubric of order 5 of the originating motion, namely, 'all further appropriate and consequential orders, directions, accounts and inquiries'.

12 In order to address the outstanding issues, some background to the proceeding is required, including the steps that were taken in the proceeding after the consent orders were made in November 2016.

13 During their lifetimes, the deceased and her husband ran the family trust and the family business. The nature of the business and the relationship between the family company and family trust were not fully elaborated in affidavits. Following the death of the deceased's husband, the deceased and Heather Bovill ran these entities.

After the deceased's death, the directors of the third defendant and the fourth defendant are respectively, the second defendant and Heather Bovill, and the first and second defendants.

14 It is unnecessary to detail the deterioration in the relationship of the parties in jointly managing the entities and other financial matters of the estate, the family trust and the business, save to note that following the sale of the remaining properties of the family trust in or around October 2013, the difficulties between the parties escalated. From then onwards, there was a souring of the relationships and an increasing level of suspicion on the part of the plaintiff of his co-executors. This gave rise to his many requests for documents before the proceeding was issued and that are now the subject of this proceeding. The plaintiff's position was that he was excluded from the management of the estate and his efforts to resolve the issues between the parties at mediation were unsuccessful because his siblings would not attend. The defendants' position was that the plaintiff took an obstructive and difficult approach to the management of the estate and the other entities and that they have done their best to cooperate with him.

15 In May 2014, a proposal was sent by the first defendant to his siblings regarding the distribution of certain funds, which the defendants say was the combined value of cash in the estate and the family trust after the sale of the remaining assets in the trust. The plaintiff did not agree to the proposal and, according to the second defendant, the plaintiff did not make a counterproposal.

16 Steps were then taken to effect a distribution to each of the first and second defendants and Heather Bovill by way of a loan from the trust. The remaining amount representing the plaintiff's share of the estate remained in the estate's bank account. The defendants explained that the remaining funds were transferred out of the trust account into a private account of the first defendant in order to circumvent issues created by the plaintiff refusing to authorise payments, such as ASIC fees, accounting and legal fees, from the estate. The surplus funds were later moved into an account in the joint names of the first and second defendants 'in an attempt to demonstrate to [the plaintiff] that resolution of the estate did not have to be a complicated process'. These matters appear to have aroused suspicion on the part of the plaintiff rather than demonstrating a way out of the impasse.

17 By February 2016, the plaintiff retained a solicitor who sent a letter dated 16 February 2016 to each of the defendants. This letter set out the plaintiff's request for documents, substantially similar to the documents sought in this proceeding. At paragraph 5.3 the letter stated that:

We understand that the addressees have already given some documents to our client pursuant to requests he has made over the last five years. However, our client nonetheless makes the request for Production as set out in this letter because:

(a) our client wishes to undertake a full and complete review of the documents the subject of his request for Production (as opposed to an ad hoc review of only some documents);

(b) as our client is legally represented, if the addressees co-operate with his request for Production, we will be in a position to clearly articulate any concerns or claims he may have; and

(c) we do not want to engage in a protracted debate as [sic] what has or has not been disclosed in the past. As such, this is intended to be an all encompassing request for documents on the terms specified. (emphasis added)

18 The letter sought production of the documents by the defendants within 21 days of the date of the letter and also stated:

1.2 If the addressees do not comply with our client's request within the time specified, our client will make application to the Court to compel Production. In such circumstances, our client will also apply for an order that the addressees (as appropriate) personally bear the costs of such an application.

...

5.5 Finally, we urge the addressees to obtain legal advice concerning the request made in this letter and your obligation to comply with the request.

19 On 8 March 2016, the first defendant responded on behalf of the defendants. His email stated that the documents were being compiled but he noted, as previously explained to the plaintiff, that 'the level of detail requested combined with the historical nature of the documents means that the extraction of relevant copies will take a considerable amount of time'. The first defendant also noted that some of the documents did not exist as a result of the 'practice adopted by our parents for many years to not follow the strict requirements of the Family Trust', again as previously explained to the plaintiff. The email explained that documents would also need to be sought from the estate accountant and noted that 'to avoid the Estate incurring unnecessary expense of having the Estate accountant extract each document' the defendants would do much of the work. The email attached 'as a matter of good faith' a tax return for the family trust but the first defendant also requested an additional six weeks to compile the relevant documents. The email also stated that the plaintiff had previously been provided with many of the documents requested.

20 On 1 April 2016, the plaintiff's solicitor agreed to the date of 22 April 2016 to allow the documents to be produced for inspection, subject to certain conditions, including that all documents were provided irrespective of whether they had previously been provided to the plaintiff. The plaintiff's solicitors sought a response to that proposal by 6 April 2016.

21 On 6 April 2016, the first defendant responded on behalf of the defendants and noted, among other things, that notwithstanding the defendants' view that much of the material had already been provided to the plaintiff, and the 'unreasonable volume of material requested ... we will continue in our endeavours to provide this information'. A further email sent by the first defendant on another issue not presently relevant also stated that '[w]e continue to work on discovering the remaining documentation [the plaintiff] has requested again'.

22 On 26 April 2016, the first defendant sent the following email to the plaintiff's solicitor:

Dear [name]

Just letting you know that we have compiled all of the documentation we have access to. We still await many invoices/receipts/statements from the Estate Accountant and once these are received we shall incorporate with all of the information collated to date. The real estate manager of the Family Trust property has not agreed to dig out every single rental receipt and invoice but has provided us with a copy of their detailed ledger.

We point out that whilst [the plaintiff] has attempted to inflate this dispute, the reality is that of approximately $300,000 that remains in the estate, without agreement as to its distribution, there is only approximately $24,00 - $30,000 that realistically can be disputed. The balance is undeniably cash awaiting distribution.

23 On 27 April 2016, the following email was sent by the plaintiff's solicitors to the first defendant:

Dear [first defendant]

It is clear from your email that you and [the second defendant] (in your various capacities):

1. only have limited access to the documents the subject of our client's request for production (although you have not explained your limited access);
2. have compiled some, but not all of the documents the subject of our client's request; and
3. are not in a position to produce all of the requested documents for inspection, including a Statement of Account for the Estate.

Furthermore, some two and half months have passed since our client's request for production of documents.

In the circumstances, it will assist all concerned for the production of documents to be supervised by the Court. Accordingly, our client will now be applying to the Court to compel production as foreshadowed to you in our letter of 16 February 2016.

24 On 28 April 2016, the first defendant responded on behalf of the defendants and explained that:

as was the practice of the parties' parents, many documents were held by the family accountant and real estate agent, 'the documents now demanded ... have never been stored/received/handled by ANY of the executors. We are therefore in the process of requesting third parties to extract, from their archives, documents which are now some 5-6 years old. These parties are no longer motivated by the anticipation of financial reward from the estate and therefore are fulfilling this request based on common courtesy or for a fee (which will increase the expenses of the Estate and those recoverable from [the plaintiff].

25 His email noted that the executors were then in possession of the majority of documents requested, with some exceptions as outlined in the email. It also attached a short form account of the estate. The email stated that those documents would be available by 9 May 2016. The email then reads as follows:

As mentioned previously there is no cause for [the plaintiff] to be concerned regarding the inequality of the distributions made to date and there is certainly no benefit in pursuing a Court Application to compel production of documentation. All that will achieve is the addition of further expense for [the plaintiff]. As you well know it will not result in a more expedient result than 9th May.

Alternatively, would [the plaintiff] rather be authorised to request copies of such directly from the holders of those documents himself? We are happy to allow him to make such a request if he believes it will expedite the resolution of the Estate.

If you are insistent upon seeking a Court Order compelling production of documents that we [sic] already seeking and have agreed to provide then please provide to us a draft of the proposed orders. This will potentially alleviate the need for us to lodge a formal rebuttal at the court thereby avoiding further expense to the Estate. We would also be interested to see what orders are contemplated that you believe will enhance the current process that is already underway. Please note that we are reserving our position to make representation at any court hearing to determine such orders especially as we will be strenuously seeking a costs order against [the plaintiff] due to the existing process already underway to satisfy the document production, the unnecessary nature of any such court application, the fact that [the plaintiff] already has the vast majority of these documents and that any such orders will not provide any benefit to the process of settling the Estate.

In any event we will be maintaining a strong argument that any of these costs that [the plaintiff] is incurring in this process will be at his own personal expense. As previously mentioned the co-executors were already in the process of securing the documentation requested prior to your involvement. Hence your involvement has done nothing to hasten nor improve this process.

26 A letter dated 26 April 2016 by the first defendant to the plaintiff's solicitor appears to have been sent by email on 16 May 2016. The letter attaches some of the documents requested and a statement of assets and liabilities of the estate.

27 The plaintiff's affidavit sets out in great detail the documents that were not provided in the response by the defendants on 16 May 2016 and outlines his concerns in this regard. It is unnecessary to consider each document or in what respects the defendants' disclosure was said by the plaintiff to be deficient. The affidavit exhibits other correspondence between the parties not relevant to the remaining issue, however, it demonstrates the degree of animosity between the parties over these protracted disputes and this proceeding.

28 There was no further correspondence of relevance between the May 2016 disclosure by the defendants and the commencement of the proceeding in September 2016.

Procedural steps taken in the proceeding after the consent orders on 10 November 2016

29 After the consent orders were made, the course of the proceeding continued to be protracted as follows:

(a) On 8 December 2016, the parties sought an adjournment of the directions hearing on 9 December 2016 by consent, with the plaintiff's solicitor noting that the defendants had produced documents pursuant to the original orders made in the proceeding and given the volume of documentation, the plaintiff required more time to review and consider them before seeking any further orders. Orders were made adjourning the directions hearing to 3 February 2017;

(b) On 2 February 2017, the parties again sought an adjournment by consent, with the plaintiff's solicitor noting that the plaintiff had only recently completed his review of the 'large number of documents', which had given rise to a number of queries that the plaintiff wished to put to the defendants with a view to narrowing or resolving the remaining issues between the parties. Orders were made adjourning the directions hearing to 3 March 2017;

(c) On 2 March 2017, the parties sought a further adjournment by consent. Orders were made adjourning the proceeding to 7 April 2017. The explanation provided to the Court was that the plaintiff's solicitors had sent a ten page letter to the defendants' solicitors on 28 February 2017 setting out various questions regarding the documents already produced by the defendants and requests for further documents. The email from the defendant's solicitor noted that the defendants needed more time to respond to the plaintiff's letter and added:

Whilst we would argue that the letter from the plaintiff is contrary to the obligations under the Civil Procedure Act to narrow and resolve the issues and keep costs proportionate, the defendants are desirous of resolving the concerns of the plaintiff and will attend to the matters raised in the letter dated 28 February 2017 as quickly and efficiently as possible.

(d) On 6 April 2017, the parties sought an adjournment to allow the plaintiff to consider further documents that had been produced by the defendants as well as further documents it was anticipated would be provided by the defendants' accountant in the week beginning 18 April 2017. Orders were made adjourning the proceeding to 5 May 2017;

(e) On 5 May 2017, the parties submitted a minute of consent to adjourn the proceeding to 26 May 2017. The email from the plaintiff's solicitor noted that, although the plaintiff had received a substantial number of documents from the defendants, the final tranche of documents to be collated by the defendants' accountants had only just been made available for inspection from 5 May 2017. The email added:

The parties are mindful of their obligations under the Civil Procedure Act to minimise delay and co-operate in the conduct of the proceeding and every effort will be made to ensure that the parties are in a position to address the Court as to the appropriate further conduct of the proceeding by the proposed adjourned date.

(f) The parties appeared at the directions hearing on 26 May 2017. Orders were made for the filing of any further affidavits and submissions on the costs of the proceeding and whether the proceeding should continue. The further hearing of the proceeding was adjourned to 23 June 2017;

(g) On 16 June 2017, the plaintiff filed submissions regarding the costs of the proceeding and the continuation of the proceeding. The defendant circulated an unsworn copy of the second defendant's affidavit, noting that a sworn copy would be filed shortly. On 22 June 2017, the parties applied to the Court for an adjournment of the hearing listed for 23 June 2017 on the basis that the parties were taking steps to resolve all remaining issues in the proceeding relating to the estate, the family trust and family company;

(h) The further hearing of the proceeding was adjourned to 21 July 2017. On 19 July 2017, a further adjournment was sought to allow further time for the parties to negotiate the issues;

(i) The proceeding was listed for hearing on 11 August 2017. Prior to the hearing, the defendants filed their submissions and the sworn affidavit of the second defendant in relation to the costs and the continuation of the proceedings. The plaintiff filed objections to that affidavit, to which the defendant responded. The Court informed the parties that it would consider the objections and the submissions on the papers;

(j) On 28 August 2017, the Court informed the parties that the plaintiff's objections to the second defendant's affidavit were dismissed.

30 Costs are at the discretion of the Court, unless as otherwise provided by an Act or the Rules.[1] The prima facie position in respect of costs in litigation is for standard costs to be ordered by the Court, with the Court having the discretion to award costs other than on the standard basis. The usual order as to costs is that costs follow the event and a successful party is entitled to an award of costs in its favour.[2] The relevant 'event' is success in the action or on particular issues.[3] The unsuccessful party bears the liability for the costs of the unsuccessful litigation.[4] The central principle is to make an order that is fair and just between the parties in the circumstance of each case.[5]

31 Where a proceeding is undetermined and has not been resolved by contest before a hearing on the merits, the Court is deprived of the factor that usually determines whether or how it will make a costs order. The applicable principles in circumstances where the court is deprived of a hearing on the merits were considered by the Court of Appeal in ASTA Developments Pty Ltd v Amasya Enterprises Pty Ltd:

In Australian Securities Commission v Aust-Home Investments Ltd, Hill J summarised the following principles concerning the exercise of a court's discretion to order costs where the parties to a proceeding no longer wish to continue:

(1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order.

(2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial. ...

(3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them.

(4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation.

(5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted.[6]

32 An executor or trustee is entitled as of right to indemnity out of the trust for expenses properly incurred, that is, all costs except to the extent that they are of an unreasonable amount or have been unreasonably incurred. The concept of proper expenditure excludes conduct that demonstrates want of prudence or diligence.[7] Expenses and liabilities that are improperly incurred, such as acting beyond power, in bad faith or exercising power 'with an absence of care and diligence that a person of ordinary prudence should exercise' are not caught by the right of indemnity and shall be borne by the trustee personally.[8]

33 The plaintiff contends that as the consent orders made at the first directions mirrored the relief sought in paragraphs 2 to 4 of the originating motion and the defendants ultimately produced the documents, he has been successful in the proceeding and the costs should follow the event. The plaintiff accepts that the disputes involve the estate and the executors and the Bovill Family Trust. In this respect, with regards to his costs and the costs of the first to third defendants, the plaintiff submits there should be a limited indemnity from the estate and the family trust as the defendants did not produce all documents within the time frame of the consent orders. He also accepts that none of the costs should come out of the share of Heather Bovill in the estate or the family trust as she has no involvement in the proceeding and her interests should not be affected by any costs orders arising from this litigation.[9]

34 The particular orders sought by the plaintiff are:

Against the first and second defendants

The first and second defendants pay one third of the plaintiff's costs of the proceeding and be indemnified as to 50 per cent of those costs out of the estate, only excluding the undistributed share of the estate to which Heather Bovill is entitled.

The first and second defendants be indemnified out of the estate excluding the undistributed share of the estate to which Heather Bovill is entitled, as to 50 per cent of their costs of the proceeding and otherwise pay their own costs.

Against the third defendant

The third defendant pay one third of the plaintiff's costs of the proceeding and be indemnified as to 50 per cent of those costs out of the Bovill Family Trust.

Against the fourth defendant

The fourth defendant pay one third of the plaintiff's costs of the proceeding and otherwise bear its own costs of the proceeding.

In the alternative, orders following the same formula but without the reduction of the first, second and third defendants' indemnities out of the estate or the Bovill Family Trust.

35 The practical effect of the plaintiff's preferred orders is that:

(a) he would receive payment for all of his costs in the following proportions after the defendants were reimbursed from the estate and family trust: one sixth from the first to second defendants, one sixth from the third defendant, two sixths from the fourth defendant, and one sixth each from the estate and the Bovill Family Trust.

(b) The first to second defendants would bear half their own costs in addition to one sixth of the plaintiff's costs after reimbursement from the estate;

(c) The third defendant would bear its own costs in addition to one sixth of the plaintiff's costs after reimbursement from the family trust;

(d) The fourth defendant bear its own costs and one third of the plaintiff's costs.

36 The defendants sought that the plaintiff pay the defendants' costs of the proceeding on the standard basis, without a right of indemnity out of the estate or the Bovill Family Trust.

37 The submissions and affidavits outline in detail what has been a long standing and acrimonious history in relation to the management of the estate, the family trust and the family company. Much of the content of the affidavits was dedicated to detailing the difficulties of the respective parties in jointly managing these assets. Before the proceeding commenced, the defendants explained the various transactions concerning the financial affairs of the estate and the family assets in response to the many concerns expressed in the plaintiff's affidavit.

38 This proceeding was not resolved by contest with a hearing on the merits and the Court is unable to determine the outcome of a hypothetical trial of the proceeding. In determining the question of costs where a proceeding is unresolved by contest, the Court may consider whether the plaintiff acted reasonably in commencing the proceeding and whether the defendants acted reasonably in their response to the proceeding. In particular cases, the Court may also consider the conduct of the defendants before the commencement of a proceeding and whether such conduct precipitated the proceeding.

39 The detailed factual background set out is relevant only to explain the relationships between the parties to the extent that that might suggest the reasonableness or otherwise of the parties before the proceeding was initiated and subsequently after the proceeding was commenced.

40 Although there was conduct on all sides that appeared to fuel the broader dispute among the parties to some degree, it was the plaintiff who initiated and maintained the proceeding. This was despite the fact that before the proceeding was initiated, the defendants endeavoured to comply with the plaintiff's many requests for documents and explained their challenges with gathering the relevant documents from third parties, such as the family accountant, and invited the plaintiff to make his own inquiries in this regard. The defendants made it known to the plaintiff that they were seeking to minimise the involvement of third parties in order to preserve the assets of the estate. The defendants explained their difficulties in compiling the documents and the futility of the activity in light of their previous disclosures to the plaintiff. They were trying to provide the requested documents and they explained the reasons for the delays in producing them. This was in circumstances where they were not legally represented in an attempt to save costs to the estate and the other entities.

41 Before the proceeding was issued, the defendants informed the plaintiff that the orders sought by the plaintiff would be agreed and the foreshadowed proceeding would not hasten their efforts in producing the documents for the reasons already given to the plaintiff. The plaintiff nevertheless commenced the proceeding.

42 The fact that consent orders were made on the first return date of the proceeding is not necessarily determinative of the issue of the costs of the proceeding. The correspondence between the Court and the parties, after the consent orders were made, highlight that notwithstanding the consent the parties continued to negotiate further requests for documents and other issues outside the scope of the proceeding for some time afterwards. The plaintiff's characterisation of the consent orders as a surrender on the part of the defendants and a vindication of the plaintiff's position is misconceived when the defendants' long held position in relation to the documents, their explanations and their attempts to satisfy the many requests by the plaintiff is taken into account. The plaintiff's requests for documents by his solicitor were made in circumstances where the plaintiff was well aware that the defendants had provided him with many of the documents. Nevertheless, the orders sought by the plaintiff in the proceeding were framed widely with no effort on the plaintiff's part to confine the dispute.

43 After the consent orders were obtained, the proceeding was characterised, to some degree, by delays occasioned in part by the plaintiff's requests for further documents and other issues that fell outside the scope of the proceeding. Further, the evidence was that at all times the plaintiff had access to the estate bank accounts and he was privy to the assets and liabilities of the estate.

44 A consideration of the affidavits both before the proceeding was commenced and afterwards shows that the defendants have co-operated with the demands of the plaintiff in relation to the administration of the estate and the family trust as best they could in the circumstances and explained their difficulties in meeting the many requests.

45 In the circumstances, I am satisfied that the defendants acted reasonably both before and after the proceeding was commenced and co-operated with the plaintiff in meeting his demands and produced the documents. However, I am not satisfied that the plaintiff acted reasonably in instituting and maintaining the proceeding.

46 This proceeding involves disputes between the executors of the estate and the trustee of the family trust. Ordinarily an executor or a trustee would be entitled to an indemnity for the costs from the estate or trust, subject to the exceptions that are set out in these reasons. As I have found that the plaintiff did not act reasonably in instituting and maintaining the proceeding, it follows that he is not entitled to indemnity from the estate or the family trust.

47 I will order that the plaintiff bear his own costs of the proceeding, without indemnity from the estate or the family trust and pay the defendants' costs of the proceeding on the standard basis, without a right of indemnity out of the estate or the Bovill Family Trust.

48 The plaintiff's remaining issue is whether the proceeding should be allowed to continue to allow further claims to be made against the defendants under the guise of order 5 in the originating motion - 'all further appropriate and consequential orders, directions, accounts and inquiries'.

49 The plaintiff contends that this order contemplates seeking consequential relief arising from the documents obtained pursuant to the first four orders. He proposes that the proceeding be adjourned to enable him to obtain professional expert advice and then amend the relief sought in the originating motion to include the details of any further orders sought and also file affidavits setting out the basis of the relief sought. The plaintiff submits this approach is efficient and cost effective and consistent with the overarching purpose of Civil Procedure Act 2010.

50 Order 5 of the originating motion seeks general and unspecific consequential relief. As drawn, order 5 is meaningless as it does not specify any particular relief against the defendants. The plaintiff readily acknowledges that he cannot identify the nature of any further relief that may be sought and he does not have any evidence of the basis of any future complaints against the defendants. He simply asserts that he may have future claims of some sort to be made against the defendants on the basis of future professional advice.

51 In Wharf Properties Ltd v Eric Cumine Associates (No 2), the Privy Council, in connection with a strike out application, said:

It is for the plaintiff in an action to formulate his claim in an intelligible form and it does not lie in his mouth to assert that it is impossible for him to formulate it and that it should, therefore, be allowed to continue unspecified in the hope that, when it comes to trial, he may be able to re-constitute his case and make good what he then feels able to plead and substantiate.[10]

52 Ordinary judicial practice includes case management or supervision of proceedings. Case management principles are embodied in the Civil Procedure Act 2010. For the purpose of facilitating the overriding purpose set out in s 7(1) of that Act, s 9 requires that a proceeding be managed having regard to, inter alia, such matters as the efficient conduct of the Court's business and the efficient use of judicial and administrative resources of the Court.

53 The Explanatory Memorandum to the Civil Procedure Bill 2010 emphasises the need for more active case management, and notes that:

[t]he primary objective of the case management provisions is to make it clear that the courts have the power to make appropriate orders and impose reasonable limits to enable them to better or actively manage the conduct of the proceedings, thereby reducing costs and delay.'[11]

54 In managing cases effectively, the Courts are entitled to and should have regard to the strain that litigation imposes on litigants and the need to impose limits on them to ensure expedition in the conduct of litigation and the relief of that burden. So much was observed by the High Court in Aon Risk Services Australia Ltd v Australian National University[12] in connection with an application for a late amendment of a claim at trial. Even in the context of the potential prejudice to the applicant of not allowing the amendment, the Court considered that case management principles required that the broader context of litigation be taken into account, including the impact on parties and the resources of a court. In their joint reasons, Gummow, Hayne, Crennan, Kiefel and Bell J state that:

The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted.[13]

55 The plaintiff's proceeding is in the nature of an interlocutory claim and the relief sought by the plaintiff has been obtained. The proceeding is by way of originating motion. There is no pleading and no cause of action formulated by the plaintiff. The plaintiff now wishes to keep his proceeding on foot so that he may bring some later claim amounting to unspecified allegations against some or all of the defendants. This does not accord with the overarching purpose under the Act, which mandates a purpose to identify and resolve the real issues in dispute. It is implicit in that purpose that proceedings are not ambulatory in the way the plaintiff submits, taking in whatever litigation might arise between the parties following a discrete dispute.

56 The plaintiff does not identify any prejudice that he would suffer if the proceeding were not allowed to continue to embrace his unspecified claims. If the proceeding were allowed to continue as presently drawn, it would not be consistent with the plaintiff's obligation to provide the proper basis of any claims against the defendants and it would not be consistent with the overarching purpose to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.[14] As presently drawn, the plaintiff cannot certify that his proceeding has a proper basis. Any potential proceeding may not be appropriate to be by way of an originating motion.

57 The defendants should not be placed in the position of the proceeding remaining on foot, at the behest of the plaintiff, with the threat of unspecified litigation being made against them. Litigation is stressful for the parties involved and it is more difficult when that litigation concerns disputes between siblings. The defendants have consistently endeavoured to satisfy the plaintiff over the years and in this litigation and the plaintiff's proposal to continue some unspecified litigation is unmeritorious. Whether the application has an ulterior motive or not may only be surmised. In my view, the plaintiff's application to continue the proceeding in this unsatisfactory manner is an overreach. It misconceives the overarching purpose of the Act and his own obligations under that Act.

58 The plaintiff's application to allow the proceeding to continue so that he may make further unspecified claims against the defendants is dismissed.

(a) The costs of the defendants of and incidental to the proceeding be paid by the plaintiff personally on the standard basis without any right of indemnity from the estate of the deceased or the Bovill Family Trust;

(b) The costs of the plaintiff of and incidental to the proceeding be borne by him personally without any right of indemnity from the estate of the deceased or the Bovill Family Trust;

[1] Supreme Court Act 1986 (Vic), s 24.

[2] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 97 (McHugh J).

[3] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624-5 (McHugh J) ('Ex parte Lai Qin'); Seng Hpa v Walker [2017] VSC 320 (8 June 2017) [77]-[81].

[4] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 97 (McHugh J).

[5] Earnshaw v Loy (No 2) [1959] VicRp 44; [1959] VR 252, 253_;_ see G E Dal Pont, Law on Costs (Lexis Nexis, 3rd ed, 2013) [6.15].

[6] [2016] VSCA 186 (3 August 2016) [25] (citations omitted). See also Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 (McHugh J); Seng Hpa v Walker [2017] VSC 320 (8 June 2017) [77]-[81].

[7] Nolan v Collie [2003] VSCA 39; (2003) 7 VR 287, 303-10 (Ormiston JA); Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584, 617 (Dodds-Streeton AJA) as cited in National Trustees Executors & Agency Company of Australasia Ltd v Barnes [1941] HCA 3; (1941) 64 CLR 268, 279 (Williams J).

[8] Re O'Donogue [1998] 1 NZLR 116, 121 (Hammond J); Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liq) [2001] FCA 1628; (2001) 188 ALR 566, 606; Nolan v Collie [2003] VSCA 39; (2003) 7 VR 287, 308-9.

[9] Rigby v Tiernan [2016] VSC 352 (24 June 2016) [115].

[10] (1991) 52 BLR 1, 2-3.

[11] Explanatory Memorandum, Civil Procedure Bill 2010, 20.

[14] Civil Procedure Act 2010, s 7.