Executrixes’ denial of deceased’s alcoholism without any proper factual foundation results in indemnity costs order

The Australian Professional Liability Blog Inbox x The Australian Professional Liability Blog via google.com 04:17 (9 hours ago) to me The Australian Professional Liability Blog Executrixes’ denial of deceased’s alcoholism without any proper factual foundation results in indemnity costs order Posted: 14 Oct 2014 10:51 PM PDT Hartnett v Taylor [2014] VSC 501 was a Part IV claim for testators’ family maintenance. The defendant executrixes said that the plaintiffs’ conduct led to estrangement from the deceased and to the deceased’s alcoholism. The plaintiffs said that the deceased’s alcoholism led to their estrangement, and that is what Sifris J found. The defendant executrixes’ contention was one which was contradicted by their own witness, the deceased’s doctor, who said that the deceased was an alcoholic before the estrangement with the plaintiffs. Sifris J said: ’12 It is in my view clear that the defendants’ evidence and contentions in relation to the deceased’s alcohol consumption and the estrangement from the plaintiffs were made in wilful disregard of known facts and were allegations which ought never have been made. This provides a sufficient basis for an order for indemnity costs notwithstanding that the defendants are not personally liable for such costs.’ Regrettably, the plaintiffs do not appear to have argued the case under s. 18(d) of the Civil Procedure Act 2010. I say ‘regrettably’ because it is desirable that a coherent and easily accessible body of law about the costs consequences of the making of allegations without a proper factual foundation grow up around the new statutory provision. Then Sifris J denied the second defendant her costs of being separately represented, since there was no need for the two executrixes to have separate representation. Client obtains Anton Piller order over solicitor’s hard disk in fees dispute Posted: 14 Oct 2014 05:20 PM PDT In Ho v Fordyce [2014] NSWSC 1404, there is a dispute between solicitor and client in relation to fees. The client contended that costs agreements relied on by the solicitor were what Rein J described as ‘a recent invention’. Given that the client asserts that there was no costs agreement, presumably the allegation is that someone forged the documents relied on by the solicitor. There is apparently some evidence already before the Court of dodginess. The client applied ex parte for an Anton Piller-like order allowing IT people to march into the solicitor’s office and copy certain contents of the solicitor’s hard disk in order to preserve evidence which may assist in proving the implied fraud. In a rather brief judgment given ex tempore, Rein J granted the application, relying on a decision of the Victorian Supreme Court’s Justice McMillan. The question of the likelihood of privileged material being present on the firm’s computers is not something discussed in the reasons. It may well be dealt with in the order, which is not reproduced in the reasons. I have never heard of any such application having been made or granted before.