Pearlson Estate v. Pearlson
- Citation
- 2001 BCSC 1569
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Supreme Court of British Columbia
- Decision
- 13 November 2001
- Posture
- Estate/property Litigation (rule 18 a Application) / Post Judgment Costs Ruling
- Language
- English
More details
- Court
- Supreme Court of British Columbia
- Decision
- 13 November 2001
- Posture
- Estate/property Litigation (rule 18 a Application) / Post Judgment Costs Ruling
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The estate is not liable for costs because the dispute concerned pre-death dealings with property rather than testamentary matters; the court exercised its discretion to award the plaintiff her costs incidental to the Rule 18A application against the unsuccessful defendant, since the application resolved the critical issue.
Court disposition
Plaintiff awarded costs incidental to the Rule 18A application to be paid by the defendant; the estate is not liable for those costs.
Orders
- Plaintiff entitled to costs incidental to the Rule 18A application.
- Costs to be paid by defendant Jacqueline June Pearlson; the estate of Colin Henry Pearlson is not liable for those costs.
- No order made for costs in respect of the remaining issues at this time.
02
Material facts
Parties
Lucien Teresa Farley (Administratrix and Trustee of the Estate of Colin Henry Pearlson, deceased)
Plaintiff Counsel: William G. MacLeodJacqueline June Pearlson
Defendant Counsel: Hugh S. McLellan03
Procedural history
Posture
Estate/property Litigation (rule 18 a Application) / Post Judgment Costs Ruling
04
Questions and positions
Legal issues
- 01
Whether costs of the Rule 18A application should be paid by the unsuccessful defendant or by the deceased's estate
- 02
Whether it is appropriate to award costs now although the action is not entirely disposed of
Party arguments
- Applicant
- Plaintiff sought costs for the successful Rule 18A application and argued the defendant should personally pay those costs rather than the estate, and that costs incidental to the application should be awarded despite remaining issues in the action.
- Respondent
- Defendant argued costs should be paid out of the estate and implicitly opposed an award of costs at this stage because the action was not fully disposed of.
05
Court’s reasoning
Legal principles
- 01
Johnson v. Pelkey, [1998] B.C.J. No. 3257 (S.C.)
General rule that successful parties recover costs from unsuccessful parties, not from the estate
- 02
Westburne Industrial Enterprises Ltd. v. Penner, [1995] B.C.J. No. 709 (S.C.); Chan v. GMS DataLink International Corp., [1996] B.C.J. No. 2015 (S.C.)
Court has discretion to award costs for interlocutory or partially dispositive applications where a significant issue has been decided
- 03
Common law principle applied in Johnson v. Pelkey
Estate liability for costs is exceptional and generally limited to litigation concerning testamentary dispositions or capacity
06
Ratio, limits and disposition
Ratio decidendi
The estate is not liable for costs because the dispute concerned pre-death dealings with property rather than testamentary matters; the court exercised its discretion to award the plaintiff her costs incidental to the Rule 18A application against the unsuccessful defendant, since the application resolved the critical issue.
Obiter and limits
- The action did not relate to testamentary disposition or testamentary capacity, providing no basis to depart from the general rule that the unsuccessful litigant pays costs rather than the estate.
- Although the action remains partly undecided, the court may award costs for a dispositive or critical interlocutory determination.
Court disposition
Plaintiff awarded costs incidental to the Rule 18A application to be paid by the defendant; the estate is not liable for those costs.
- Plaintiff entitled to costs incidental to the Rule 18A application.
- Costs to be paid by defendant Jacqueline June Pearlson; the estate of Colin Henry Pearlson is not liable for those costs.
- No order made for costs in respect of the remaining issues at this time.
Source and reliance status
Supreme Court of British Columbia · 13 November 2001
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Supreme Court of British Columbia
Judgment· 13 November 2001
2001BCSC1569 Citation: Farley v. Pearlson re costs Date: 20011113 2001 BCSC 1569 Docket: 97/4179 Registry: Victoria
IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: LUCIEN TERESA FARLEY, ADMINISTRATRIX AND TRUSTEE
OF THE LAST WILL AND TESTAMENT OF COLIN HENRY PEARLSON, DECEASED
PLAINTIFF AND:
JACQUELINE JUNE PEARLSON
DEFENDANT
RULING ON COSTS
OF THE HONOURABLE MR. JUSTICE RALPH Counsel for the plaintiff William G. MacLeod Counsel for the defendant Hugh S. McLellan Date and Place of Hearing/Trial: October 29, 2001 Vancouver, B.C. [1] On August 31, 2001, I issued Reasons for Judgment on the plaintiff's application for judgment under Rule 18A. The administratrix and trustee of the estate of the late Mr. Pearlson had sought a determination of whether Mr. and Mrs. Pearlson's joint tenancy of a Denman Island property had been severed. It was the defendant Mrs. Pearlson's position that the joint tenancy had not been severed and that upon Mr. Pearlson's death on April 28, 1997, she became entitled to the land as the surviving joint tenant. I held, however, that the tenancy had been severed and that the plaintiff holds a one-half interest in the property as a tenant in common. [2] The plaintiff now seeks costs. The defendant says that the costs should be paid out of Mr. Pearlson's estate. Two issues are raised: 1. Is the unsuccessful defendant or the estate liable for costs?
2. Given that there remain for determination in the action some issues not raised in the Rule 18A application, is it appropriate to award costs at this time? [3] In Johnson v. Pelkey, [1998] B.C.J. No. 3257 (S.C.) Baker J. stated at para. 46, that "the general rule in cases involving estate litigation, as in other litigation, is that the successful parties should have their costs paid by the unsuccessful parties, and not by the estate." Counsel for the defendant has offered no real basis for departing from the general rule. The action relates to the dealings of Mr. and Mrs. Pearlson with the property a number of years before Mr. Pearlson's death and does not, for example, relate to any testamentary disposition of the testator or his testamentary capacity. In my view the estate is not liable for the costs. [4] The judgment granted August 31, 2001, did not entirely dispose of the action. It did, however, dispose of the most critical issue. The court has a discretion in such circumstances and in my view the appropriate order is that the plaintiff is entitled to her costs incidental to the Rule 18A application (see Westburne Industrial Enterprises Ltd. v. Penner, [1995] B.C.J. No. 709 (S.C.), Chan v. GMS DataLink International Corp., [1996] B.C.J. No. 2015 (S.C.)). "Bryan F. Ralph, J." The Honourable Mr. Justice Bryan F. Ralph
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