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Carroll, Jane Kathleen v Goff, Robert Terence [2021] VSCA 267

WILLS AND ESTATES, PRACTICE AND PROCEDURE
Victorian Court of Appeal
Judge(s): 
Maxwell P, Kennedy and Walker JJA
Parties: 

Carroll, Jane Kathleen v Goff, Robert Terence

Judgment Date: 
21 September 2021
Catchwords: 

WILLS AND ESTATES - Probate - Executors - Application for probate - Deceased's two children named as executors - Codicil appointed New South Wales Trustee & Guardian as executor should there be disharmony or disagreement between named executors - One named executor applied for probate - Long history of disputation between siblings - Codicil applicable - Probate application refused - Decision plainly correct - Appeal dismissed.

PRACTICE AND PROCEDURE - Natural justice - Right to fair hearing - Application determined on the papers - Applicant self-represented - Whether denial of procedural fairness - Parties filed submissions and affidavits - Narrow issue - Competing positions clearly articulated - Consideration of public interest and private interest - No practical injustice - Doughty-Cowell v Kyriazis [2018] VSCA 216, Roberts v Harkness (2018) 57 VR 334; [2018] VSCA 215, applied; Coffey v O'Halloran [2021] VSCA 29, discussed - Civil Procedure Act 2010 ss 7-9, 47, 49.

PRACTICE AND PROCEDURE - Costs - Indemnity costs - Whether judge erred in discretion on costs - Proceeding had no proper basis - Respondent warned applicant that application would fail and indemnity costs would be sought - No error - Civil Procedure Act 2010 s 18.

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