Re Donat; Robert Donat v Philippe Donat

2 What costs orders (or, potentially, other orders sought by one of the sons) should the Court now make, following receipt of submissions filed in August and September 2025 and related correspondence?

3 This proceeding was commenced as an application by the plaintiff, Robert Jean Donat (Robert), for letters of administration pendente lite to be granted to Patrick Lyttleton (Mr Lyttleton) in respect of the estate of Davena Janice Donat, who was the mother of Robert and Philippe Donat (Philippe).

4 The key asset of the estate is 118 Coolart Road, Tuerong, described in Volume 08679 Folio 117 and Volume 08319 Folio 917 of the Register (the Tuerong property).

5 On 5 December 2024, Mr Lyttleton issued a summons seeking judicial advice pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 on various topics of estate administration and (by paragraph 5) an order for recovery of possession of the Tuerong property from Philippe pursuant to ord 53. Philippe's summons sought no substantive order but merely that he be granted leave to appear. However, that summons set out grounds including that Philippe asserted an 'equitable interest' in the Tuerong property. Both summonses were returnable on 18 June 2025. On that day, leave to be heard as sought in Philippe's summons was granted. Such leave had previously been granted and was never seriously in any doubt. I declined to hear paragraph 5 of Mr Lyttleton's summons and restricted the hearing to the judicial advice issues.

6 Following the hearing, I gave an interim ruling, initially in oral form (20 June 2025) and subsequently in writing (27 June 2025, revised 1 July 2025).[1] That ruling set out the background facts, which are not repeated here. The ruling also gave judicial advice on the issues raised by Mr Lyttleton's summons, largely consistent with submissions by Robert. It indicated that Philippe had failed to articulate or substantiate any equitable interest in or right to possession of the Tuerong property, and that Mr Lyttleton would be justified in making an application for recovery of possession, but that Philippe would have a 'further and final' opportunity to articulate and substantiate his claim on the hearing of that application.

7 As a result of that ruling, I made directions for the separate hearing of the application set out in paragraph 5 of Mr Lyttleton's summons, and that application was heard on 18 August 2025. On that day I gave an oral ruling granting the relief and made orders as sought in paragraph 5 the summons.

8 My reasons for decision in relation to Mr Lyttleton's summons are therefore to be found in Re Donat; Robert Donat v Philippe Donat [2025] VSC 383 (first revision 1 July 2025) and the revised transcript published to the parties of my oral ruling on 18 August 2025.

9 As to the plaintiff's costs of Mr Lyttleton's summons, recitals G and H of my Order made and authenticated on 18 August 2025 recorded:

G. As to Robert Donat's costs, the Court indicated that it was inclined to the view that the usual order should apply and Philippe Donat should pay those costs on the standard basis, because (although not the party formally moving the Court for the orders in Mr Lyttleton's summons filed 3 December 2024) Robert Donat was the principal protagonist in the contest with Philippe Donat as to the orders in Mr Lyttleton's summons and Robert Donat had been substantially successful.

H. The question of Robert Donat's costs was reserved for determination on the papers in the manner provided for in orders 6-9 below.

10 Orders 6-9 set out a timetable for the parties to file material on costs and reserved the determination of any order as to the plaintiff's costs to be on the papers.

11 Under s 24(1) of the Supreme Court Act 1986, the Court has a broad discretion as to the question of costs in a proceeding before it. That discretion must be exercised judicially, by reference to the factors raised by the case.[2]

12 Where beneficiaries are joined to an application by an executor or administrator of a deceased estate for judicial advice concerning the estate's administration, and the beneficiaries conduct themselves reasonably and the matter is not adversarial in character, an order will usually be made that the beneficiaries may recover their costs from the estate. This will typically be on an indemnity basis. Such cases fall within what is known as the first category in Re Buckton,[3] where Kekewich J said as follows:[4]

In a large proportion of the summonses adjourned into Court for argument the applicants are trustees of a will or settlement who ask the Court to construe the instrument of trust for their guidance, and in order to ascertain the interests of the beneficiaries, or else ask to have some question determined which has arisen in the administration of the trusts. In cases of this character I regard the costs of all parties as necessarily incurred for the benefit of the estate, and direct them to be taxed as between solicitor and client and paid out of the estate.

13 However, that is not the approach where the relevant litigation arises from and concerns, in substance, an adversarial dispute between beneficiaries: Kempson v Haydon (Costs).[5] In such cases, the usual rules of adversary litigation apply.

14 In Re Bogdanov,[6] McMillan J said that the 'central principle' is 'to make an order that is fair and just between the parties in the circumstances of each case', and summarised the applicable principles, being that usually a successful party in litigation is entitled to a costs order in its favour, and there is a discretion to award non-standard costs where the proceeding exhibits a special feature or unusual circumstance.[7]

15 Order 63 of the Supreme Court (General Civil Procedure) Rules 2025 governs the exercise of the Court's general discretion conferred by s 24(1).[8] One of the non‑standard forms of a costs order is an order for indemnity costs: r 63.30.1. The principles that guide the Court's discretion whether or not to impose an indemnity costs order are well established, and were set out by Harper J in Ugly Tribe Co Pty Ltd v Sikola.[9] I respectfully adopt his Honour's summary of the principles.

16 On 22 August 2025, Philippe filed submissions resisting the suggestion that he pay the plaintiff's costs. Philippe submitted that all parties should receive their costs from the estate on an indemnity basis, or alternatively, that Mr Lyttleton do so and that the costs of Robert and Philippe be reserved pending determination of the related probate proceeding.

17 Set out in detail over 20 pages, the key contentions advanced by Philippe in his submissions of 22 August 2025 may be summarised and arranged into 11 topics, as follows (I have re-arranged the sequencing and grouping of some of the points and quoted summarised passages):

1. The summons was not adversarial so costs should be borne by estate: Philippe contended that Mr Lyttleton's summons was an application for judicial advice that was necessary for the due administration of the estate and all the costs of the summons should be borne by the estate: it was a case within category 1 described in Re Buckton [1907] 2 Ch 406 at 414-415. Although judicial advice proceedings can be adversarial (as recognised in Kempson v Haydon (Costs) [2022] VSC 366 at [20]-[30]) this was not such a case.

2. The hearing of the summons was summary and interlocutory, and is connected with an unresolved controversy concerning competing wills, so: Philippe contended that, alternatively, Mr Lyttleton's costs should be paid out of the estate on an indemnity basis, and the costs of both Philippe and Robert of and incidental to the summons should be reserved to the conclusion of the probate proceeding, following the principle in Walker v Walker (No 3) [2025] ACTSC 91 at [20] that 'where a proceeding involves the construction of a will or its administration, whether brought by the trustee or beneficiary, there is a guiding principle that unless a party has been vexatious or lacking in good faith, costs are usually allowed to all parties out of the trust fund'. Philippe contended that, because the question of probate the subject of related proceeding S PRB 2022 07270 remains unresolved, Philippe's occupation may yet be substantively vindicated as having been in the interests of the estate, especially if the deceased's 2009 will is admitted to probate. Philippe submitted that there is no proper basis for an adverse personal costs order against him.

3. Philippe's role was assistive: Philippe contended that, in any event, there should not be a personal costs order against him because '[h]e did not initiate the summons; he pressed no untenable position; he narrowed the issues by conceding that possession should be ordered and sought a stay with terms mirroring the likely Administrator's course in preservation of the Estate pending probate; and he did not oppose routine outgoings'. He said his participation 'was confined to assisting the Court in its supervisory jurisdiction, not prosecuting an adversarial claim.'

4. Philippe's role was protective: He contended that his summons of 20 December 2024 and submissions of 13 August 2025 'placed before the Court essential context ... . Philippe's summons sought procedural relief (leave to appear, stay/lease), ensuring disclosure without escalating to adversarial litigation.'

5. Any adversarial element arose from the Court's approach: Philippe contended: 'Justice Gray elected to retain the Administrator's possession claim (Order 53) within the framework of the judicial advice summons (Order 54), rather than requiring a separate proceeding. That procedural choice inevitably blurred the protective/advice category with adversarial remedies. Philippe's involvement was therefore necessary to ensure the Court received full disclosure before any possession order was made. To treat his participation in that hybrid structure as adversarial conduct warranting a personal costs order would be to punish him for adhering to the Court's own procedural design.'

6. The matter arose from an ambiguity in the Court's order: Philippe contended that, on 12 December 2023, the Court directed that the status quo be preserved as to Philippe's occupation. While the Court later described Philippe as a "trespasser", that description merely reflected the absence of present title. By an analogy with the "testator cause exception" identified by Powell J Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709E-G, the costs should not fall on Philippe personally but should be borne by the estate, because 'the present summons was necessitated not by any untenable stance of Philippe but by the uncertainty created by Gray J's orders of 12 December 2023. As subsequent events demonstrated, those orders were insufficiently clear to resolve the Administrator's powers and the position regarding possession. The true "cause" of the litigation was therefore the state of the Court's own orders, not any adversarial conduct by Philippe.' Philippe likewise said: 'It is respectfully observed that, had the direction of 12 December 2023 as to preservation of the status quo been expressed with greater clarity as to its interaction with the administrator's limited powers, there may have been no occasion for judicial advice. The very need for the 3 December 2024 summons on possession arose from that uncertainty which agitated the parties. Philippe's occupation - far from being defiant - reflected his good faith understanding of the Court's earlier position. If judicial ambiguity drove the need for advice, costs should not penalise Philippe but be reserved or estate-borne Re Hodges at 709E-G.' Philippe also submitted: 'Crucially, in reasons Gray J acknowledged a tension between the Court's earlier remarks about preserving the status quo and the administrator's powers to recover and call in estate assets. That tension - and the need for advice - confirms Philippe's occupation was not disobedient or defiant, but a good-faith adherence to case-management directions pending clarification.'

7. Robert did not achieve substantial success: according to Philippe, Robert did not achieve success on any question relating to routine outgoings or the payment of any other debts. He also pointed out that the claim for immediate sale of Tuerong property was not successful, the Court refusing to make that order and noting it was a matter for another day. Contrary to recital G in the Order on 18 August 2025, Philippe submitted, Robert was not 'substantially successful': 'Philippe's market rent proposal mirrored the estate's likely course post possession; the estate is no better positioned (and potentially worse given tax/outgoings) than under Philippe's proposed stay with rent structure' and '[i]n a protective proceeding, "success" is not an apt proxy for adversarial costs'.

8. Philippe made appropriate concessions: Phillippe pointed out that in his submissions dated 13 August 2025, 'he accepted that he had no current legal entitlement to possession of Tuerong and that an order for possession should be made in favour of the administrator' and at the 18 August 2025 hearing, 'through counsel, he confirmed on the record that there was no present legal or equitable basis to remain in occupation; the only live question was whether execution should be stayed pending determination of probate'. 'By narrowing the dispute to the timing of execution (or a practical lease solution), Philippe saved costs and avoided unnecessary argument. That conduct sits squarely with Category 1 costs Re Buckton'. 'By the time of the Order 53 hearing, Philippe made clear he would not resist vacant possession per se. Given the live probate contest, he simply sought a stay of execution until probate and suitable lease arrangement to preserve the Estate.'... 'His conduct in occupation was protective of the estate's value, not destructive of it.' ... The real threat to the estate's integrity lay not in Philippe's continued occupation, but in Robert's repeated statements that, once possession was gained, he intended to sell Tuerong. Such threats risked alienating the estate's principal asset before probate was resolved, creating the very prejudice judicial advice is designed to prevent. Philippe's stance preserved the estate pending determination of the true Will; Robert's stance exposed it to premature and irreversible loss'.

9. Any adversarial element arose from Robert's conduct relating to Mr Lyttleton: Philippe contended that correspondence between Robert's solicitors and Mr Lyttleton on 16 May 2024 indicates that Robert felt able to direct Mr Lyttleton, helping to explain how the summons became adversarial. Philippe contended that 'Robert sought to use the Administrator as the vessel to give effect to his own agenda. Instead of confining himself to a beneficiary's proper role, Robert pressed for steps that would see Philippe removed and the property sold, in direct tension with the Court's assurance on 12 December 2023 that the Administrator was merely to act as a neutral steward of the estate. The limited administrator, under that pressure, repeatedly urged Philippe to vacate, notwithstanding the Court's preservation of the status quo. This conduct shows that it was Robert's influence, not Philippe's resistance, which drove the tension in the possession dispute.'

10. Resourcing imbalance: Phillipe contended that there was an imbalance in resourcing for legal representation as between Philippe and Robert.

11. Application to vary previous orders/make new orders: Philippe contended that it appears that estate funds were drawn down to pay for Robert's legal costs (contrary to Gooley v Gooley [2020] NSWSC 798, [92]-[94] (Williams J)), and protective orders are warranted to prevent this. Philippe submitted: 'Accordingly, Philippe seeks ancillary protective orders ... requiring Robert to account fully for his dealings with estate funds and refraining from any further use of estate assets to meet his personal legal costs absent Court order.' Further, existing costs orders 4 and 5 made on 18 August 2025 should be varied. They were provisional, because the Court also permitted submissions pursuant to order 6, and 'Philippe did not actively oppose Orders 4 and 5 at the time, but nor did he concede liability. The absence of opposition in the moment does not displace the settled principle that judicial advice proceedings fall into Category 1, where all parties' costs are payable from the estate on an indemnity basis.' ... 'Orders 4 and 5 should be set aside and replaced with: "The second defendant's costs of and incidental to his summons filed 3 December 2024 be paid from the estate of Davena Janice Donat, deceased, on an indemnity basis".' The ancillary protective orders sought against Robert were: 'a. Within 14 days, Robert file and serve an affidavit accounting in full for all dealings by him with estate funds since 11 March 2022, including (i) all payments made to himself, his solicitors or counsel; and (ii) the legal authority for each such payment, with supporting bank statements and documents. b. Pending determination of the probate proceeding, Robert be restrained from causing or permitting any further use of estate funds to meet his personal legal costs, save as expressly authorised by order of the Court'.

18 On 1 September 2025, the plaintiff, Robert, filed his costs submissions. He sought orders that:

(a) his costs of this proceeding from the date of his notice to produce (24 October 2024) to the date of Philippe's summons dated 20 December 2024, be paid from the estate; and

(b) his costs of this proceeding from 20 December 2024, be paid by Philippe, on an indemnity basis.

19 On my reading of his submissions, Robert's responses (made across 18 pages) to some (at least) of the 11 points made by Philippe that I have summarised above, may in turn be usefully summarised and rearranged as follows.

1. Philippe's contention that the summons was not adversarial so costs should be borne by estate: Robert contended that, from at least the date of Philippe's inclusion of grounds in his summons dated 20 December 2024 claiming equitable rights of possession of the Tuerong property, the matter was adversarial, reflecting communications in 2024 to the effect that he would not vacate the Tuerong property. Mr Lyttleton's submissions dated 3 June 2025 stated that it was 'more practical and fair to leave the competing claimants to the beneficial interest to contest the litigation among themselves at their own risk as to costs, with the trustee a necessary but inactive party'. Philippe's Senior Counsel at the hearing on 18 June 2025 characterised the dispute as a beneficiary dispute. Philippe continued to assert a right to possession in his material filed on 9 July 2025, which was voluminous, affected by errors, and appeared to have been prepared with generative AI. It was only on 12 August 2025, shortly before the hearing listed for 18 August 2025, that Philippe indicated he intended to rely on revised submissions accepting that he had no right to possession of the Tuerong property, which would replace his submissions of 9 July 2025.Robert contended 'There would have been no need for the proceeding if not for the first defendant's conduct in unlawfully occupying the property and refusing to pay debts that he was responsible for under the 2017 deed'.

2. Philippe's contention that the hearing of the summons was summary and interlocutory and is connected with an unresolved controversy concerning competing wills: Robert submitted: 'Notwithstanding the plaintiff's general reservations about the likely prospects of success of the first defendant's objection to probate of the 2013 Will in the related contested probate proceeding and so as to better understand the first defendant's ability to make good on his overall best case scenario (being his ability to buy out the Plaintiff's 50% share of the property in the unlikely event that the first defendant set aside the 2013 Will), the plaintiff by his solicitors, sought clarification of the first defendant's financial position to confirm that the 50% buy out was even a possibility.' ... 'By letter dated 15 August 202535 the first defendant failed to expressly respond to the question of his financial capacity to buy out the Tuerong property from the estate even if he successfully challenged the validity of the 2013 Will ...'... 'Having regard to the question of the utility of the stay [of the possession order], the Court afforded the first defendant an opportunity to go on oath to explain how he may be able to meet the costs associated with purchasing a 50% share of the Tuerong property in the event that the first defendant successfully challenged the validity of the 2013 Will' ... 'This Honourable Court was ultimately unsatisfied that any of the options proffered by the first defendant were certain enough, instead categorising them as merely speculative and refused to grant the stay requested'. Philippe's reference to Walker v Walker (No 3) [2025] ACTSC 91 at [20] omitted the next sentence: 'However, those authorities also make clear that where the litigation is properly characterised as adversarial litigation, the usual order that an unsuccessful party will be ordered to pay the costs of the litigation will be "rigidly enforced."'

3. Philippe's contention that his role was assistive: Robert submitted: 'Having conducted himself in a way that necessitated the proceeding, once filed, the first defendant opposed being required to pay the debts and sought to advance various (and inconsistent) legal arguments to oppose Mr Lyttleton, as the estate's Legal Personal Representative, recovering possession of the property'.

4. Philippe's contention that his role was protective: Robert submitted: 'The first defendant's summons in late December 2024 may have done little more than otiosely seek leave to be heard in this proceeding, but it was couched in terms of being an application, the first defendant inaccurately describing himself as "the applicant" and provided "grounds for the application" regarding partnership property, equitable interests and the need for the first defendant to make submissions as to the interpretation, operation and effect of the 2017 Deed in relation to the Tuerong Property and his "equitable interest therein".' ... 'At the June 2025 hearing, the first defendant was joined as a party to the proceeding and relied on submissions that purported, inter alia, that the Tuerong property was "partnership property" and/or based on estoppel that arose from signing the 2017 deed mistakenly'.

5. Philippe's contention that any adversarial element arose from the Court's approach, 6. Philippe's contention that the matter arose from an ambiguity in the Court's order, and 7. Philippe's contention that Robert did not achieve substantial success: Robert's submissions made no specific response.

8. Philippe's contention that he made appropriate concessions: Robert submitted: 'On 13 August 2025, 5 days before the scheduled hearing of Mr Lyttleton's Order 53 application on 18 August 2025, and some 10 months after the plaintiff filed his Notice to Produce in this proceeding, the first defendant filed submissions and an affidavit conceding that he currently had no basis at law or in equity to claim an entitlement to possession of the Tuerong Property, clearly confirming the position that the plaintiff had been asserting since commencement of this application'.

9. Philippe's contention that any adversarial element arose from Robert's conduct relating to Mr Lyttleton, 10. Philippe's contention of a resourcing imbalance, and 11. Philippe's application to vary previous orders: Robert's submissions made no specific response.

20 For topics not met with any specific response from Robert, I note that Robert's submissions also stated as follows:

Consistent with the plaintiff's overarching obligations, and with a view to minimising further costs, the plaintiff does not seek to refer to and respond to all the matters raised in the first defendant's costs submissions, other than to submit that the first defendant's submissions that are relevant to the court's determination of costs appear to rely heavily on the form of the application, as opposed to the substance of the proceeding.

21 Robert's submissions also included contentions in support of his application that Philippe be ordered to pay Robert's costs from 20 December 2024 on an indemnity basis, which included the following passage:

The first defendant's summons was entirely unmeritorious, unnecessary and was conducted inefficiently. In fact, if read literally, all the first defendant sought by his summons was the right to be heard, a matter which was entirely uncontroversial.

The balance of his approach to this litigation can undoubtedly be described as having advanced an unmeritorious dispute, and one that the court acknowledge[d] failed to raise an arguable case to Philippe having an equitable interest in the property. So much is evident given that, with the benefit of Counsel's advice, he conceded both in correspondence to the Court and subsequent submissions that he currently has no right at law or in equity to remain in occupation of the property. The same had been argued against him by the plaintiff since the inception of this matter.

The first defendant cannot rely on being self-represented through a brief stage of this proceeding as a means to escape responsibility to agitate matters without a proper basis. This was considered by Moore J in Gurappaji v Phillips [[2021] VSC 11, at [11]] and in reality, the first defendant was represented by three different counsel since November 2024 and represented by each of them at the various hearings save and except the short directions hearing conducted on 4 July 2025, where leave was granted to his former solicitor to file a Notice of Ceasing to Act (conveniently on the day that the first defendant was required to file his further material to articulate with greater precision the basis of his claim to remain in occupation of the property).

The first defendant's summons did not seek to advance a legal position but rather appeared to be maintained for an ulterior purpose that is the benefit that the first defendant personally derived by remaining in occupation of the Tuerong property ...

...

(a) he has proceeded with wilful disregard of known facts and established law and has ultimately conceded that he has no basis at law or in equity to remain in occupation of the property;

(b) he has filed and served lengthy and confusing affidavit material and submissions requiring a response from the other parties that he has later sought to have disregarded and supplanted by entirely opposite submissions;

(c) the material that he has relied upon, in part, appears to have been generated by AI causing inconvenience to the parties and to the Court in having to identify and unravel the AI hallucinations;

(d) he has acted in such a way as to demonstrate an ulterior motive that has afforded him rent-free continued occupation of the property without lawful basis in circumstances where he has not established, and is unlikely to establish, that he is even a beneficiary of the deceased's estate;

(e) he put the plaintiff to the expense of preparing costs submissions in reply where the Court had made it clear both in open Court and by the Orders of 18 August 2025 that 'it was inclined to the view that the usual order should apply and Philippe Donat should pay those costs on the standard basis, because ... Robert Donat was the principal protagonist in the contest with Philippe Donat ... and Robert Donat had been substantially successful.'

22 On 2 September 2025, the second defendant (Mr Lyttleton) sent correspondence noting that the first defendant's (Philippe's) submissions appeared to seek a variation of the 18 August 2025 orders, and he sought to file short reply submissions in relation to varying the orders.

23 I considered this issue at the time. I noted that Philippe's application relevantly sought to vacate the order I had made against him as to Mr Lyttleton's costs on the standard basis (order 4), and the order that Mr Lyttleton otherwise recover his costs on an indemnity basis from the estate (order 5). The application instead sought for an order that Mr Lyttleton recover all his costs from the estate, on an indemnity basis. I formed the view that this application was outside the scope of the procedural orders I had made permitting post-hearing submissions. I was also satisfied that the application was patently without merit due to the fact that Philippe (through his counsel) had not opposed proposed orders 4 and 5 while they were the subject of discussion and submissions during the hearing on 18 August 2025, as recorded in recital F of the Order of 18 August 2025.

24 That recital is consistent with the transcript of the hearing on that day, pages 68-72, which was an extended discussion with reference to a minute of proposed orders tabled by Mr Baum of counsel on behalf of Mr Lyttleton, including proposed order 4. That discussion left no room for doubt as to Philippe's position: he did not oppose it and did not seek any further opportunity to be heard on it. After initially beginning to make a submission about proposed order 5 referring to costs on the indemnity basis, counsel for Philippe realised that order 5 concerned Mr Lyttleton's recovery of the balance of costs from the estate, and he said no more about order 5, either.

25 In short, the issue of Mr Lyttleton's costs was finalised after Philippe had an opportunity to make submissions. Counsel for Philippe did not oppose the making of that order and (unlike the proposed order that Philippe pay Robert's costs) he did not ask the Court to reserve its decision on order 4 for an opportunity to make submissions about it. The orders I made on 18 August 2025, permitting post-hearing submissions (orders 6-8) and for determination on the papers (order 9), did not encompass any such issue. It would be inappropriate and contrary to the principle of finality to now entertain it. Further, the Civil Procedure Act 2010 required me to seek to give effect to the overarching purpose of facilitating the just, efficient, timely and cost‑effective resolution of the real issues in dispute. It would have been contrary to that purpose to permit Philippe to re-ventilate the merits of order 4. I refused to do so.

26 Further and in any event, nothing in Philippe's submissions raised a persuasive reason for vacating or varying the orders I had made.

27 On 3 September 2025, my chambers indicated that I would not vacate the relevant orders. There was, consequently, no need to allow Mr Lyttleton to be heard.

28 On 8 September 2025, Philippe filed submissions in reply. Over 19 pages, he joined issue with Robert's submissions and repeated and amplified various points he had already made. In summary, the gist of Philippe's reply submissions was that he:

... opposes any personal costs order against him and seeks an order that all parties' costs be paid from the estate on an indemnity basis, or alternatively, that costs be reserved until the probate dispute is resolved. Robert's submissions portray Philippe's actions as adversarial and inefficient, but this narrative overlooks Philippe's challenges as a self-represented litigant, the administrator's central role in initiating the proceeding, and Robert's own contributions to escalating tensions through repeated threats of sale and procedural delays. Philippe's involvement was not obstructive but aimed to assist the Court in providing informed judicial advice, fully consistent with the protective nature of this proceeding.

29 Philippe's reply submissions also made various assertions to the effect that Mr Lyttleton was not neutral. These submissions were said to be in support of the application to have order 4 made on 18 August 2025 (that Philippe pay Mr Lyttleton's costs) vacated, and also for the following purpose:

The Court should consider directing an inquiry into the Administrator's neutrality, including full disclosure of his communications with Robert, to ensure equitable administration pending the probate resolution.

30 In this regard, on 9 September 2025, Mr Lyttleton sent further correspondence, noting that the first defendant's reply submissions raised allegations concerning Mr Lyttleton's conduct and re-agitated the variation of the August orders, and sought to file submissions in relation to those issues. That same day, my chambers responded, noting that the correspondence had been brought to my attention.

31 I have considered Philippe's submissions impugning Mr Lyttleton's neutrality and Mr Lyttleton's application to file submissions in response.

32 I have decided to refuse Mr Lyttleton's application to file submissions in response, and to simply proceed to determine the costs issues on which I am reserved forthwith. My reasons for adopting this approach are as follows.

33 The first key purpose apparently behind Philippe's assertions impugning Mr Lyttleton's neutrality was his submission that the costs order already made against Philippe be vacated. As already noted, I decided not to entertain Philippe's submission urging the vacation of order 4 of the Order I made on 18 August 2025.

34 The other key purpose apparently behind Philippe's criticisms of Mr Lyttleton is his submission summarised in paragraph 29 above. There is no application properly on foot to any such effect, and it would likewise be inappropriate for me to entertain Philippe's criticisms for that purpose.

35 For these reasons, I will not now entertain - or in any way attempt to determine the merits of - Philippe's assertions impugning Mr Lyttleton's neutrality. It follows that there is no utility in permitting Mr Lyttleton to make responding submissions. Doing so would simply incur costs that may ultimately have to be borne by the estate, and would also be contrary to the overarching purpose in the Civil Procedure Act.

36 It remains for me to determine the various issues raised by the competing positions of Robert and Philippe as to Robert's costs. In doing so, I have also noted that Philippe has included a submission or primary position that his own costs should be borne by the estate (on an indemnity basis) and an alternative position that they should at least be reserved pending the outcome of the related probate proceeding. Although that submission was not strictly encompassed within the leave I granted the parties for post-hearing submissions, I will address it, albeit briefly, in the course of setting out my conclusions and reasoning. On these issues, I have concluded that:

(a) Robert's costs of this proceeding incurred between 24 October 2024 up to and including 20 December 2024, be paid from the estate, on an indemnity basis;

(b) Robert's costs of this proceeding from 20 December 2024 to the date of this order, be:

(i) paid by Philippe, on the following bases:

• from 20 December 2024 up to and including 11 August 2025, on an indemnity basis;

• from 12 August 2025 up to and including 18 August 2025, on a standard basis; and

• from 19 August 2025, on an indemnity basis; and

(ii) to the extent not recovered from Philippe under the preceding subparagraph, otherwise paid from the estate on an indemnity basis; and

(c) there should be no order as to Philippe's costs of the proceeding.

37 As to 1. Philippe's contention that the summons was not adversarial so costs should be borne by estate, 3. Philippe's contention that his role was assistive, 4: Philippe's contention that his role was protective, and 6. Philippe's contention that the matter arose from an ambiguity in the Court's order: I am satisfied that these contentions are incorrect and do not justify the costs outcomes he seeks for the reasons I will now briefly explain.

38 As should be clear from Re Donat; Robert Donat v Philippe Donat,[10] what I said (about not changing the status quo) on the first occasion this matter was before me contributed to a period of uncertainty as to what should be done with regard to Philippe's occupation of the Tuerong property, namely between 12 December 2023 (when the matter first came before me) and 18 November 2024 (when the matter next came before me). However, it should be equally clear from Re Donat; Robert Donat v Philippe Donat[11] that, on that second occasion, I noted the dispute about the legality of Philippe's occupation and made orders setting deadlines for summonses by Mr Lyttleton and Philippe as to any relevant relief. From 18 November 2024 onward, there was no continuing ambiguity arising from anything I had said on 12 December 2023.

39 Significantly, Robert does not seek any of his costs incurred prior to 20 December 2024 to be paid by Philippe. In other words, he only seeks his costs from Philippe from the date of Philippe's summons formalising (in the statement of grounds in the summons) Philippe's claim of an interest in the Tuerong property. He only seeks his costs from a time after which it must have been very clear to Philippe that nothing I had said on 12 December 2023 about maintaining the status quo applied any longer, and the parties were now free to make any application they saw fit about Philippe's occupation of the Tuerong property.

40 Philippe's summons asserting that he had an equitable interest in the Tuerong property was filed by Philippe in response to the filing of Mr Lyttleton's summons for judicial advice and a possession order. Robert had long been complaining about Philippe's continued occupation of the Tuerong property. All questions about Philippe's occupation were in substance matters of controversy between the brothers. The application for judicial advice on issues relating to Philippe's occupation of the Tuerong property was properly characterised as an adversarial matter between them.

41 The judicial advice application also sought advice as to the approach the estate should take to various debts allegedly owed by the estate for which Philippe might bear payment responsibilities. Robert had, likewise, long been making claims that Philippe should pay the relevant debts, so clearly there was a dispute between the brothers as to the debts, too.

42 The advice given in Re Donat; Robert Donat v Philippe Donat[12] facilitated the payment to third parties of four claimed debts and justified Mr Lyttleton bringing claims against Philippe in respect of each of those debts. And, even more significantly, the judicial advice justified Mr Lyttleton in bringing an application (by way of a separate, subsequent, step) for recovery of possession of the Tuerong property.

43 This overall outcome represented a substantial vindication of the positions Robert had adopted with respect to the debts and Philippe's continued occupation of the Tuerong property.

44 It is true that Robert had also sought sale of the Tuerong property in submissions and correspondence, but Mr Lyttleton's summons did not seek that order, and it was not a central feature of the hearing of the summonses.

45 In form, Mr Lyttleton's applications were necessarily applications brought by him in his capacity as the limited administrator, but in substance the summons was a vehicle for resolving the longstanding disputes between the brothers about Philippe's continuing occupation of the Tuerong property and about the alleged debts. The hearings of the summons were, without doubt, in substance an adversarial dispute between potential or actual beneficiaries (in the sense described in cases like Kempson v Haydon (Costs)[13]) and did not fall within category 1 of Re Buckton.[14]

46 For completeness, I note my view that the costs Robert incurred after 20 December 2024 could not reasonably be regarded as costs that must be borne by the estate (rather than Philippe) as a result of anything said or done by the Court, by way of analogy with the testator error principle. Arguably costs between 12 December 2023 and 18 November 2024 might be in a different category, owing to the fact that the ambiguity in what I said at the hearing on 12 December 2023 might have affected the parties' conduct in that period. It is unnecessary to come to a conclusion on that question. That is because Robert seeks that his costs in that period from the estate in any event, and that outcome was not opposed by Philippe. Robert did not stipulate in his submissions on what basis those costs should be assessed and recovered from the estate. In my view, he is entitled to them on an indemnity basis, as they were costs properly incurred while acting reasonably in relation to questions of estate administration, and the interests of justice in all the circumstances of the case are that he not be left personally bearing the cost burden of having done so.

47 As to Philippe's contention (2) that the hearing of the summons was summary and interlocutory and is connected with an unresolved controversy concerning competing wills: I am satisfied that these contentions do not justify a reservation of Robert's and Philippe's costs (or that they be borne by the estate) for the reasons I will now briefly explain. In my view, irrespective of the outcome of the related probate proceeding, and even assuming Philippe will be successful in objecting to probate of the 2013 will, his conduct in this proceeding has been such as to amply justify an order that he pay Robert's costs from 20 December 2024, and that Philippe not recover his costs from the estate or that they be reserved. That is chiefly because Philippe's conduct in asserting an equitable interest (in a manner he could never properly articulate or substantiate) was the principal cause of Mr Lyttleton's summons. Irrespective of the ultimate outcome of the related probate proceeding, none of the key circumstances on which that evaluation is based will change. In this proceeding Philippe asserted, but failed to raise an arguable case, for an equitable interest in the Tuerong property. The outcome of the probate proceeding can never alter that fact.

48 As to Philippe's contention (7) that Robert did not achieve substantial success: I am satisfied that this contention is incorrect and does not justify the costs outcomes Philippe seeks. Put simply, this is because, after the possession order application had been separately listed for hearing and one set of submissions and material had been filed, Philippe retracted his claim to have a right of possession and the remaining dispute related to whether a possession order should be stayed and the conditions of any such stay. The acknowledgment by Philippe that he had no right that could justify his continued occupation of the Tuerong property represented a substantial vindication of Robert's longstanding position in the dispute.

49 I am satisfied that Robert was the successful party in what has been to date, in substance, an adversarial proceeding. Under longstanding principles, he is therefore entitled to the usual order for his costs to be met by the losing party in the controversy, Philippe.

50 As to Philippe's contention (5) that any adversarial element arose from the Court's approach: I am satisfied that this contention is incorrect and does not justify the costs outcomes he seeks, for the reasons I will now briefly explain.

51 At the hearing on 18 June 2025, Senior Counsel for Philippe submitted that it would be inappropriate to exercise the Court's jurisdiction to grant judicial advice at the same time as exercising its jurisdiction to determine an application for recovery of possession of the Tuerong property. The Court asked, and heard submissions from Senior Counsel for Philippe, about whether it would be necessary to commence a separate proceeding, or have a separate summons, relating to the recovery of possession; or whether a separate, subsequent hearing in relation to paragraph 5 of Mr Lyttleton's summons would suffice. Senior Counsel submitted a separate, subsequent hearing would suffice.[15] This was reflected in my reasons for judgment in Re Donat; Robert Donat v Philippe Donat.[16] Philippe's suggestion that it was the Court's approach that introduced the adversarial element ignores the submissions that were made on his behalf at the hearing on 18 June 2025 and is without foundation.

52 As to Robert's application that Philippe pay Robert's costs on an indemnity basis from 20 December 2024: I am satisfied that, save for the period 12-18 August 2025 inclusive, Robert is entitled to an order for his costs to be paid by Philippe on an indemnity basis. My reasons for this conclusion, in brief, are as follows.

53 The key motivating element of the dispute was Philippe's claim (formalised in the grounds of his summons dated 20 December 2024), that he had an equitable interest in the Tuerong property, and on that basis a right to remain in occupation.

54 After many attempts were afforded to Philippe to articulate and substantiate that claim, when it was apparent that such attempts were hopeless, he retracted that claim. This was in effect a capitulation as to Philippe's key claim underpinning the dispute.

55 I am satisfied that Philippe had no reasonable basis in fact or law for making such a claim at any time, including in the period from 20 December 2024, when he was actively asserting it in this proceeding, up to and including the day before 12 August 2025, which was the date he indicated the claim would be retracted. In other words, his conduct of the proceeding in that period was without reasonable foundation in fact or law, and he should have known this. It was also productive of wasted resources and delay in that period of the proceeding.

56 Applying the well-established principles concerning imposition of special costs orders, as summarised in cases such as Ugly Tribe,[17] I am satisfied that I should impose such an order on Philippe, as submitted by Robert, albeit I do not fully agree with Robert's submissions about the temporal scope of that outcome. The indemnity costs order should apply up to 11 August 2025, the day before Philippe indicated he was retracting his claim of lawful possession of the Tuerong property. I address what should happen next in the following few paragraphs.

57 As to Philippe's contention (8) that he made appropriate concessions: I am satisfied that in the period from (and including) 12-18 August 2025, Philippe acted appropriately in abandoning his attempts to claim a right in law or equity to possession of the Tuerong property and advanced a reasonably arguable (albeit weak) alternative argument based on seeking a stay, on conditions, of the possession order sought by Mr Lyttleton. I am satisfied that Philippe's position remained in substance an adversarial one, but the arguments concerning the Tuerong property he deployed in this period were not hopeless or unreasonably made. He is therefore not liable to pay Robert's costs in this period on an indemnity basis, but only on the standard basis. Philippe remains liable to pay Robert's costs on that basis because the matter was adversarial and Philippe ultimately failed in his revised arguments. To the extent that Robert will not recover all his costs in that short period on an indemnity basis, I am satisfied that he should receive them from the estate, because the root cause of those costs being incurred was the incorrect position taken by Philippe with regard to administration of the estate and Robert incurred to those costs duly and reasonably in connection with the administration. Mr Lyttleton in effect left it to the brothers to be protagonists on the key issues. Robert's position was ultimately found to be vindicated, and it would be unjust for him to be left out of pocket.

58 The characterisation of Philippe's conduct of the proceeding as being based on reasonable (albeit weak) arguments is only accurate to the close of the hearing on 18 August 2025. From that point on, he reverted to adopting positions in the litigation that had no reasonable foundation and were productive of wasted costs and delay.

59 At the close of the hearing on 18 August 2025, when I indicated that I was inclined to order costs on a standard basis, Philippe did not accept that outcome and sought (through counsel) and obtained leave to make written submissions. He later filed submissions in his own name that not only resisted any such order but sought various other orders not within the purview of leave granted for post-hearing submissions, as already noted. This was unreasonable conduct, was wasteful of resources without proper foundation, and re-exposed him to liability to pay Robert's costs on an indemnity basis. I am satisfied that I should order that Philippe pay Robert's costs on an indemnity basis from 19 August 2025 to the date of the order to be made today.

60 As to Philippe's contention (9) that any adversarial element arose from Robert's conduct relating to Mr Lyttleton: I am not satisfied that this allegation is made out on the evidence. To the extent that Robert raised his concerns about matters such as the debts claimed against the estate for which Philippe might be responsible, and Philippe's occupation of the Tuerong property, there was nothing improper about this. As my judicial advice shows, I ultimately formed the view that Robert's concerns justified further action being taken by Mr Lyttleton. I was satisfied that on the evidence before me that the primary cause of the adversarial character of the dispute between the brothers was Philippe's conduct.

61 As to Philippe's contention (10) of a resourcing imbalance, and Philippe's contention (11) that new orders be made and existing orders varied: I am satisfied that these matters do not justify the outcomes sought by Philippe, for the reasons I now briefly explain.

62 It is possible that at least some of the history of Philippe's sporadic legal representation in the proceeding may be due to him being short of money. Whether or not that is so, it does not absolve Philippe from the consequences of having conducted the proceeding on the basis of a claim (to be in lawful occupation of the Tuerong property) lacking any proper foundation in fact or law for so long, or for the unreasonable approach he took after the hearing as to aspects of the submissions he filed.

63 Further, Philippe's contention about an imbalance in resourcing in part appears to rest on serious accusations or intimations Philippe makes to the effect that Robert appears to have drawn funds from the estate. Any such accusations or intimations must be made by way of a formal application on notice to Robert and supported by detailed information and evidence, and if made in this way they might lead to a complex hearing at which witnesses would be required to attend to give evidence. It would be inappropriate for me to attempt to determine the merits of these accusations, or consider them any further, within the purview of the current costs applications.

64 In part, the orders newly sought by Philippe in his submissions are for protective orders stemming from and based upon his accusations about Robert drawing funds from the estate. As just explained, it would be inappropriate for me to attempt to address that matter any further in this context, and I refuse to do so.

65 As to Philippe's attempted application for an order vacating orders 4 and 5 made on 18 August 2025, I have already explained my conclusion and reasoning on that point: I refused to entertain that application.

66 As to Philippe's application for an order for recovery of his costs from the estate (on an indemnity basis), I am prepared to deal with that application now (even though Philippe did not ask for leave on 18 August 2025 to make any post-hearing submissions to that effect). Having considered that application, I am satisfied that Philippe is not entitled to any such order. For the reasons already explained, the prime cause for the litigation was Philippe's conduct, and it was principally based on an assertion of an equitable interest and right to possession of the Tuerong property that he failed (despite many opportunities) to articulate and substantiate, and that he ultimately abandoned. His conduct led to a dispute that was adversarial in character. He lost that dispute. I refuse his application to recover any of his costs from the estate.

67 For similar reasons, I refuse Phillippe's alternative application that his costs be reserved pending the outcome of the related probate proceeding. As already explained, irrespective of the ultimate outcome of the probate proceeding and in light of his conduct of this proceeding, there is no prospect that Philippe would be entitled to recover his costs of this proceeding from the estate or from Robert.

[1] Re Donat; Robert Donat v Philippe Donat [2025] VSC 383 (First revision 1 July 2025).

[2] See, eg, Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, [40]-[45] (Gaudron and Gummow JJ), see also [65] (McHugh J, although dissenting in the result).

[3] [1907] 2 Ch 406.

[5] [2022] VSC 366 at [20]-[26] (Forbes J).

[6] Re Bogdanov; Atkins v Drummond (No 3) [2020] VSC 425.

[9] [2001] VSC 189, [7]-[11].

[10] [2025] VSC 383, [4]-[5].

[12] [2025] VSC 383.

[13] [2022] VSC 366, [20]-[30].

[14] [1907] 2 Ch 406, 414-415.

[15] Transcript of proceedings, Supreme Court of Victoria (Gray J), 18 June 2025, 63.29-65.7 (Mr Ower KC).

[16] [2025] VSC 383, [63].

[17] Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, [7] (Harper J).