Victorian Numbered Regulations Victorian Numbered Regulations(1) Where a party dies, and a cause of action in the proceeding survives, but no order is made under Rule 9.09(2) substituting a personal representative of the deceased party as party, the Court, on application by a party or by a person to whom liability on the cause of action survives on the death, may order that unless an order for substitution is made within a specified time the proceeding be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability thereon survives on the death.
(2) On making an order under paragraph (1), the Court may, whether or not a grant of representation within the meaning of Rule 9.08(11) has been made, direct that if the proceeding is dismissed by virtue of the order, costs of the proceeding be awarded as follows—
(a) if the plaintiff dies, to the defendant against the personal representative of the deceased out of the estate of the deceased;
(b) if the defendant dies, to the personal representative of the deceased against the plaintiff.
(3) Where the plaintiff dies, the Court shall not make an order under paragraph (1) unless due notice of the application for it has been given to—
(a) the personal representative, if any, of the deceased; and
(b) any other person having an interest in the estate of the deceased who, in the opinion of the Court, should be notified.
(4) Where a defendant serves a counterclaim, this Rule shall apply, with any necessary modification, as if the plaintiff were the defendant and the defendant were the plaintiff.