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Osborne v Osborne [2001] VSC 24 (8 February 2001)

Last Updated: 19 February 2001

No. 4000 of 1996

HIS HONOUR:

1. In this proceeding the plaintiff, Ray Osborne, made a claim of mutual wills between his deceased parents, Winifred Alice Osborne and Frederick Osborne. His claim was brought against his 84-year-old stepmother, Daisy Osborne. In his second amended statement of claim the plaintiff pleads that it was agreed between Winifred Alice Osborne and Frederick Osborne that -

(1) each would revoke their former wills and testamentary dispositions;

(2) each would make mutual wills which wills would not be revoked during the life of the survivor; and

(3) by their mutual wills each would leave the whole of their estate to their respective children absolutely and, in the event of such child not surviving the parent who died, then that child's children would take under the will in his place.

2. The plaintiff registered caveats against the property occupied by his stepmother claiming an interest in the property. By his proceeding he sought an order that all furniture and household articles received by Daisy Osborne from her late husband, Frederick Osborne, be transferred to the plaintiff and his brother, Neil Frederick Osborne.
3. By a counterclaim filed in the proceeding Daisy Osborne sought an order the effect of which would be that the caveats be removed.
4. The proceeding came before Harper, J. His Honour rejected the plaintiff's claim and on 23 March 2000 delivered reasons to that effect. On 20 April 2000 and

   30 June 2000 his Honour ordered that the caveats that the plaintiff had placed on the title to the property be removed and that the plaintiff pay Daisy Osborne's costs of the proceeding.

5. The plaintiff filed a notice of appeal against the orders of his Honour on 10 April 2000.
6. On 23 January 2001 the plaintiff sought an order pursuant to r.64.25 of the Supreme Court Rules staying the orders of Harper, J. pending the determination of the plaintiff's appeal by the Court of Appeal.
7. In addition to seeking a stay of Harper, J.'s orders the plaintiff also seeks an injunction restraining Daisy Osborne from seeking to transfer, mortgage, charge or otherwise deal with any interest she may have in the property, again pending the determination of the plaintiff's appeal by the Court of Appeal.
8. What prompted the application for injunctive relief was that in October 2000 Mrs Osborne mortgaged the property to secure a sum of $50,000 she had borrowed to pay her legal fees in defending the proceeding.
9. In my opinion there is no sound basis for staying the two orders of Harper, J. The caveats referred to in the first of his Honour's orders have now been removed. In my opinion Mrs Osborne has every justification or entitlement to have her costs of the action taxed.
10. I should observe that, having read the reasons for judgment of Harper, J., it is my opinion that the plaintiff does not have reasonable prospects of succeeding on the appeal. Indeed, I consider the contrary is the situation. I say that for the reason that the principal findings made by his Honour against the plaintiff were findings of fact. That much is clear if one looks at paragraph 22 of his Honour's reasons for judgment, which reads:

"22. In my opinion, the plaintiff has failed to prove the contract upon which his case depends. There is simply no evidence that either parent intended to prevent the other from ever, in any circumstances, revoking his or her will if the first to die left, at the time of his or her death, his or her will in the form it took on 24 March 1985. The plaintiff was cross-examined on this very point. In my opinion, his evidence came nowhere near establishing the contract which is pleaded by paragraph 4(b) of his second further amended statement of claim."

11. Further, I do not consider that there are any exceptional circumstances in this case which would justify a stay of the costs order once the costs are taxed.
12. As to the injunction, as I have already pointed out, it was necessary for Mrs Osborne to borrow the sum of $50,000 to pay her legal costs of the proceeding. It is clear from the material on the court file that she has no other moneys available to her for that purpose. As I have already stated, she is 84 years of age. She is a pensioner whose health is poor. It will now be necessary for her to find other funds to cover the costs of the appeal to the Court of Appeal - I would have thought a most unenviable position for an elderly person to find herself in. To grant the injunction would effectively deprive her of the ability to defend the appeal.
13. When talking of Mareva injunctions, Lord Donaldson, M.R. said, in Derby & Co. Ltd. and Others v. Weldon and Others [1990] 1 Ch. 65 at 76:

" The fundamental principle underlying this jurisdiction is that, within the limits of its powers, no court should permit a defendant to take action designed to ensure that subsequent orders of the court are rendered less effective than would otherwise be the case. On the other hand, it is not its purpose to prevent a defendant carrying on business in the ordinary way or, if an individual, living his life normally pending the determination of the dispute, nor to impede him in any way in defending himself against the claim. Nor is it its purpose to place the plaintiff in the position of a secured creditor. In a word, whilst one of the hazards facing a plaintiff in litigation is that, come the day of judgment, it may not be possible for him to obtain satisfaction of that judgment fully or at all, the court should not permit the defendant artificially to create such a situation."

In my opinion, the statement about "not to impede a defendant in any way in defending himself against the claim" is equally applicable to the present application.

14. Accordingly the plaintiff's summons filed on 23 January 2001 will be dismissed with costs to be taxed and paid by the plaintiff.
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