Amicucci v Di Tullio (2)
[2011] VSC 670
•22 December 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2009 09734
| ERGISA AMICUCCI AND ELIA ACCAPUTO | Plaintiffs |
| v | |
| MARIO DE TULLIO (who is sued as executor of the will of Tommaso De Tullio deceased) | Defendant |
| - and between - | |
| S CI 2009 9120 | |
| GIUSEPPINA VENEZIALE | Plaintiff |
| v | |
| MARIO DE TULLIO (who is sued as executor of the will of Tommaso De Tullio deceased) | Defendant |
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JUDGE: | LANSDOWNE AsJ | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 31 May 2011, 12 September 2011, 1 December 2011 | |
DATE OF PRINCIPAL JUDGMENT: | 24 October 2011 | |
DATE OF THIS JUDGMENT: | 22 December 2011 | |
CASE MAY BE CITED AS: | Amicucci and ors v Di Tullio (2) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 670 | |
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TESTATOR’S FAMILY MAINTENANCE - Applications by three daughters of testator - Only son sole beneficiary – Applicants successful- Determination of amounts paid by the estate but required to be borne by beneficiary/executor personally-Approach where successful plaintiffs disagree – Costs of plaintiffs and defendant - Offer of compromise -Calderbank offer - Administration and Probate Act 1958, s 91.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs (in proceeding S CI 2009 9734) | Mr J. Tsalanidis | Wilmoth Field Warne |
| For the Plaintiff (in proceeding S CI 2009 9120) | Ms. C.H. Sparke | Maurice Blackburn |
| For the Defendant | No appearance |
HER HONOUR:
Introduction
By originating motions filed 16 September 2009 (Mrs Veneziale) and 23 October 2009 (Mrs Amicucci and Mrs Accaputo) each plaintiff sought further provision out of the estate of the late Tommaso Di Tullio, their father. The defendant in each case was their remaining sibling, their brother Mario Di Tullio, sued as the executor of their father’s estate. He was the sole beneficiary of the estate. The two proceedings were heard together on 31 May 2011, by then undefended.
I delivered reasons for judgment in favour of the plaintiffs on 24 October 2011 (“my earlier Reasons”). The bulk of the estate comprises the deceased’s former home which had by then been sold by the first mortgagee in possession. Settlement was anticipated in early November. The defendant had not participated in the trial, and so there was no current information as to amounts to be paid to the first mortgagee and an equitable second mortgagee on settlement, and no detailed information as to the purpose and application of these advances. Given certain submissions made by the plaintiffs it was necessary to consider before making orders whether or not the defendant should be required to bear some of these amounts personally. In my earlier Reasons I referred at paragraphs 45 and 46 to the absence of evidence on these matters, and at paragraphs 73-75, 93 and 105 to the issues arising from the plaintiffs’ submissions, indicating I would hear the parties further once this evidence was obtained.
Accordingly, I made orders on 24 October 2011 that the mortgagees provide a detailed breakdown of the amounts claimed to the respective plaintiffs and adjourned the proceedings to a date to be fixed for orders. The defendant was sent by the Court to his last known address a copy of the reasons for judgment and the orders of 24 October 2011, and was notified at that address of the date fixed for the making of orders, being 1 December 2011. The defendant did not respond to any of that material or attend on 1 December 2011.
On 1 December 2011 counsel for the plaintiffs and plaintiff in each proceeding made submissions in respect of the orders to be made. Counsel for the plaintiff in S CI 2009 9120, Ms Sparke, supported her oral submissions by submissions in writing. In each case, counsel sought that the defendant personally, rather than the estate, bear a portion of the amounts in fact already paid in satisfaction of the mortgages, but they disagreed as to the amount. They also disagreed as to the amount of legal costs incurred by the defendant that the estate should be required to bear. They agreed that the plaintiffs’ costs in each case should be borne by the estate. Evidence was provided by solicitors’ affidavits as to the breakdown of the amounts owed to each mortgagee, the defendant’s costs, the plaintiffs’ costs, and offers to settle the proceedings made by each plaintiff prior to trial. In S CI 2009 9734 the plaintiffs each made an offer of compromise pursuant to Order 26 of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”). The offer was made in writing dated 28 April 2011 and was in the sum of $80,000 for each plaintiff, plus costs. The defendant did not accept the offer. In S CI 2009 9120 the plaintiff Mrs Veneziale made a written offer dated 3 May 2011 in the sum of $95,000 plus costs. The offer was expressed to be a Calderbank offer. The offer was not accepted.
I made orders on 1 December 2011 for service on the defendant of the various affidavits relied upon, and the proposed form of judgment in each proceeding. I am satisfied having regard to various affidavits of service now filed that those orders have been complied with. I gave the defendant a limited opportunity to seek to be heard in opposition to the proposed judgments. He has not availed himself of that opportunity. I indicated in the orders of 1 December 2011 that, in the absence of the defendant seeking to be heard, orders, by which I intended the judgments, would be made in chambers. The intent of this order was to avoid any further legal costs for the plaintiffs, given the impact of further legal costs on the estate.
These reasons accompany the judgments I have now made.
No agreement as to amounts to be borne by defendant personally
The plaintiffs in each proceeding have submitted a proposed form of judgment. The plaintiffs continue to disagree as to the amounts which the defendant should be required to repay the estate, being amounts paid to his former solicitors for legal costs and to the mortgagees.
In my view, this creates a difficulty. Counsel in each proceeding explained the rationale for the plaintiffs’ or plaintiff’s proposal in that proceeding, but neither made any submissions as to the possibility or desirability of the Court taking a different approach in one proceeding to the other as to amounts the defendant executor was required to bear personally. It is theoretically conceivable, depending on the nature of offers made, that there might be different determinations in relation to legal costs. It is difficult to conceive, however, how this would work in practice, if costs are to be borne by the estate. This is because, whether the amount to be repaid is costs already deducted or a portion of the debts to the mortgagees already deducted, each must be determined before the size of the net estate to be then distributed according to the proportions determined by me is known. It is the same estate for all plaintiffs. Even if it were possible or practicable to determine different proper deductions from the estate in each proceeding, in my view it would be highly undesirable. Accordingly, my judgment will reflect the same approach as to amounts the defendant should bear personally in both proceedings.
Debt to Ask Funding Limited
I set out at paragraph 46 of my earlier Reasons the background to this unregistered second mortgage in respect of advances totalling $100,000. Documents provided to the plaintiffs pursuant to my orders of 1 December 2011 now establish that the total debt paid to Ask Funding Limited (“Ask Funding”) on settlement was $152,599.88. The initial advance of $73,999.95 was sought on 23 February 2010 by the defendant’s former solicitors on his behalf to pay “outstanding bills”.[1] In respect of subsequent advances, the defendant’s then solicitors provided to the lender to support the draw down copies of invoices for legal costs in either the Veneziale or Amicucci and Accaputo proceedings. No such invoices were provided in respect of the initial advance.[2] The former solicitors for the defendant confirm that this initial advance was to cover costs incurred by the defendant in his own capacity, while the remaining draw downs were in respect of his defence as executor of these two proceedings.[3]
[1]AD-7 to the affidavit of Anthony Desiderio sworn 1 December 2011 in S CI 2009 9734.
[2]Ibid
[3]AD-10 to that affidavit.
Accordingly, the plaintiffs in both proceedings seek that the defendant bear personally 74% of the total advances, interest, enforcement expenses and annual fee.[4] The solicitor for the plaintiffs in S CI 2009 9734 has calculated this sum as $100,391.04. On examination, however, this is not 74% of the total amount paid to Ask Funding on settlement. It may be that this is because the solicitor has not included the initial and subsequent loan fees in his calculation. Whatever the explanation, in my view, if it is to be accepted that the defendant should pay personally 74% of the advances, then he should pay that proportion of all associated costs and interest, and the simplest way to reflect that is to require him to repay to the estate 74% of the amount eventually paid to Ask Funding (or alter his share to reflect a notional repayment in that sum). That sum is $112, 923.91.
[4]That affidavit at paragraph 15.
In addition, the plaintiff in S CI 2009 9120, Mrs Veneziale, seeks that the defendant bear personally not just 74% but the whole of the interest and costs on the total advance from 29 July 2010. The rationale advanced is that this was a year after the deceased’s death, and so failure by the executor to take effective action to discharge or stabilise this debt by that date was a failure by him to effectively discharge his duties as executor to maximise, or at least maintain, the value of the estate. A further independent basis advanced is that the defendant continued to reside in the home from the deceased’s death in July 2009 until the mortgagee took possession in July 2011, yet paid no occupation fee. If this approach is taken, on that plaintiff’s calculations, the defendant would be required to repay the estate $123,533.32 in respect of the Ask Funding debt, an extra $10,609.41.
In my earlier Reasons at paragraph 93 I referred to a submission put at that time by the plaintiffs that the defendant’s share should be reduced having regard to his occupation of the testator’s home prior to the testator’s death from 2004 to 2009, as well as after, without payment of rent or occupation fee. Subsequent to the submissions on 1 December 2011 I indicated to the plaintiffs that on reflection my preliminary view was that it would not be appropriate to require any specific amount by way of occupation fee prior to the testator’s death, as the testator’s finances were from 2004 until his death the responsibility of his administrators who could, had they chosen to do so, have required some rent or occupation fee from the defendant. I advised that I would, of course, hear from the parties further on this submission if they wished to press it. In the proposed judgments now sought it is not proposed that any amount be required to be repaid by the defendant in respect of his occupation of the testator’s home prior to his death.
Debt due to Harplex Pty Ltd
I set out at paragraph 45 of my earlier Reasons the background to this debt. At settlement, the debt totalled $100,586.83. The plaintiffs in S CI 2009 9734 do not seek that the defendant repay to the estate any portion of this amount. Mrs Veneziale seeks that the defendant repay to the estate (i.e. bear personally) two sums, being $614.11, which was a sum advanced to the defendant personally[5], and $41,144.41, which is said to be the whole of the interest and costs payable on the advance from 13 July 2010. The rationale in respect of the second amount is the same as in respect of the Ask Funding debt after July 2010 i.e. that if the defendant as executor did not take effective action to discharge this debt, perhaps by sale of the property, within one year of the testator’s death, then costs incurred thereafter are waste of the estate, which are to be borne by the executor personally. Further, the defendant had the benefit of living rent free in the property during this time.
[5]This is evidenced by the disbursement authority signed by the defendant at the time of the initial advance of $42,500.00 which forms part of AD-9 to the affidavit of Anthony Desiderio sworn 1 December 2011.
If this submission is to be accepted, then the amount properly to be borne by the defendant personally should, in my view, exclude the mortgagee’s conveyancing costs, as the estate would have been required to bear conveyancing costs to liquidate the estate in any event. This re-calculation would require the defendant to repay the sum of $36,509.77 in respect of interest and costs after 13 July 2010, which includes the mortgagee’s legal costs but excludes the conveyancing costs.[6] With the initial personal advance, this totals $37,123.88.
[6]The breakdown of all amounts owed to Harplex Pty Ltd is AD-5 to the affidavit of Anthony Desiderio sworn 1 December 2011. The conveyancing costs of $4,634.64 there set out are also shown in the statement of account which is PJR-4 to the affidavit of Paul John Rule sworn 8 November 2011 which accompanied the payment into court of the balance of the sale proceeds.
Defendant’s legal costs
The plaintiffs also disagree as to the amount of legal costs that the defendant is entitled to be paid from the estate, as opposed to required to bear personally. The defendant’s former solicitors, who were also the solicitors for the first mortgagee, Harplex Pty Ltd (“Harplex”) have been paid the whole of their legal costs, in the sum of $59,658.20. The sum of $25,999.98 was paid to them by the defendant by draw downs from Ask Funding, and they received the balance of $33,658.22 from Harplex by way of garnishee order. That order was obtained from the Magistrate’s Court on 17 October 2011, presumably following judgment in those proceedings but apparently without notice to any of these plaintiffs. Harplex of course was the initial recipient of the proceeds of sale of the estate asset, the testator’s former home. The result is that the estate has paid the whole of the defendant’s legal costs, i.e. on an indemnity basis, without the plaintiffs having the opportunity of putting any submissions to the contrary or seeking a taxation of those costs prior to payment.
The plaintiffs in S CI 2009 9734 do not seek to disturb this result, save that their proposed form of judgment does provide that any party may seek a taxation of another party’s costs, but the proposed wording would exclude costs already paid. Ms Veneziale seeks that the defendant only be entitled to $25,999.98 (or “such other sum as the Costs Court orders”) by way of legal costs to be borne by the estate, and that he repay (effectively that his share of the monies in court be adjusted to reflect) the amount of $33,658.22 paid to his former solicitors pursuant to the garnishee order.
As to the basis for this proposal, counsel for Ms Veneziale in her oral and written submissions seeks that the defendant pay personally his legal costs incurred after 3 May 2011, being the date of her Calderbank offer. It appears from the form of the proposed judgment that this may be the rationale for permitting $25,999.98 only without taxation. If the defendant was to recover a larger amount he would be required to seek taxation.
There is no explicit connection drawn, however, by counsel for Mrs Veneziale between the sum of $25,999.98 (being the defendant’s legal costs paid by Ask Funding and agreed to be borne by the estate) and the date of her offer, being 3 May 2011. The documents in evidence show that draw downs from Ask Funding for legal costs incurred in these proceedings took place on five occasions from 28 April 2010 to 29 July 2010 inclusive. The last attached invoices are for legal work in each proceeding to 30 June 2010.[7] I noted in my earlier Reasons at paragraph 3 that it appears the defendant played no active role since the mediation conducted on 20 July 2010 or shortly thereafter. His former solicitors, Trumble Szanto Lawyers, ceased to act by notice filed on 31 August 2010. Presumably he could not have incurred legal costs thereafter. The lapse of time between the last paid invoice in evidence and the notice of ceasing to act is two months. The only evidence before me as to how the amount paid pursuant to the garnishee order , i.e. for this period, was made up, or in respect of what legal work, is the assertion by those solicitors in their letter to the solicitors for the plaintiffs in S CI 2009 9734 of 18 November 2011[8] that these costs were “wholly attributable to legal costs incurred by Mario Di Tullio in defence of the action brought by the challengers to the will, i.e. it was a sum expended by him in his capacity as executor of the estate.” The actual invoices are not in evidence.
[7]AD-7 to the affidavit of Anthony Desiderio sworn 1 December 2011 in S CI 2009 9734.
[8]Contained within AD-9 to that affidavit.
Payment of the plaintiffs’ costs from the estate
Subject to a minor difference of approach in relation to the costs of the defendant’s application to re-open his case, which is set out further below, the plaintiffs agree that their legal costs be paid from the estate. Mrs Veneziale seeks that her costs be paid in a fixed sum i.e. without taxation, while seeking an order permitting her to tax the other plaintiffs’ costs and/or the defendant’s costs. This may not be as inconsistent as it might otherwise appear, as the sum she seeks is the full amount of her legal costs, but on the Supreme Court scale, without any uplift, as would be permitted by her solicitors’ fee agreement with her. The inference is that this sum does not exceed properly recoverable solicitor client costs, and may, indeed, be less.
Mrs Amicucci and Mrs Accaputo seek that their costs be paid from the estate on a solicitor client basis up to 28 April 2011 (being the date of their offer of compromise) and on an indemnity basis thereafter, as provided in the Rules.
The defendant filed a summons on 10 August 2011, prior to the delivery of my earlier Reasons, seeking to re-open his case. He did not appear on the return date of that summons, 12 September 2011. On that day, I dismissed the summons, and ordered that the defendant pay personally the costs of the plaintiffs of the summons, including the costs of appearance today and any costs necessarily incurred following the Court’s communication to the solicitors for the plaintiffs on 9 September 2011. The plaintiff in S CI 2009 9120 seeks that, pursuant to that order, her costs be fixed in the sum of $2750.80. The plaintiffs in the other proceedings have not made provision of payment of this order for costs in their proposed form of judgment.
Amounts to be paid by the defendant personally in respect of the debts to Ask Funding and Harplex: discussion and determination
I accept the submissions put by Mrs Veneziale’s counsel that the defendant should be required to repay to the estate all interest and costs from July 2010 on both loans secured on the home. I agree that it was waste of the estate or failure to discharge his duty as executor to allow these debts of the estate to continue to increase after a reasonable period, fixed at one year from the testator’s death, within which they could have been stabilised (by renting the property) or paid (by selling it). This reasoning applies with equal force to both of these debts. They were both secured on the same estate property. On reflection, I do not consider that there is any distinction to be drawn between the two debts in this respect, as I flagged there may be in my earlier Reasons at paragraph 93.
As indicated earlier, if the defendant is to be required to repay these amounts in respect of the Veneziale proceedings, then he should also be required to repay them in respect of the Amicucci and Accaputo proceedings. Any other approach would cause inconsistent results, and be quite impracticable.
I accept the submissions that the defendant should also pay personally advances by each lender utilised by him for non-estate purposes and the interest and costs thereon (save that given the small amount of the personal advance by Harplex I do not include interest and costs thereon to July 2010). The total to be repaid by the defendant on these bases is $112,923.91 (74% of the Ask Funding advances, interest and costs) + $10,609.41 (remaining interest and costs on that debt from July 2010) +$614.11 (personal advance from Harplex) + $36,509.77 (all interest and costs on the Harplex debt from July 2010, excluding the conveyancing costs on sale) = $160,657.20. As a practical matter, given that the defendant has not played any actual role in the proceedings for some time, and it may be difficult to obtain these sums by way of repayment by him, my orders will provide that his share of the monies to be paid out of the sale proceeds deposited into Court may be adjusted accordingly.
The extent to which the defendant’s legal costs should be paid by the estate
There are two issues to consider here. The first is whether the whole or only some part of the defendant’s costs should be borne by the estate or by the defendant personally. If the whole are to be borne by the estate, the second issue is whether only a portion should be allowed without taxation, given that the plaintiffs did not have the opportunity to be heard in relation to the garnishee order, and, if so, in what amount.
In relation to the first, s. 97(6) of the Administration and Probate Act 1958 provides that the Court may make any order as to costs that is “just”. Although this is a very broad discretion, the usual position in relation to the costs of the defendant executor is that they are borne by the estate. There may be some judicial difference of opinion as to whether this is on a solicitor client basis or an indemnity basis.[9] Having regard to the lack of participation by the defendant in the proceedings, which itself has occasioned extra costs for the plaintiffs in endeavours to give him every opportunity to participate, I consider that the proper basis here for payment by the estate of the defendant’s costs is solicitor client. If taxation of the costs the estate has already paid is sought and it transpires on that taxation that this means a sum is required to be paid back into the estate by the defendant, his share may be adjusted accordingly.
[9]Cf In the matter of the will of Geoffrey George Sitch (No 2) [2005] VSC 383 at [2] per Gillard J. with Bentley v Brennan [2006] VSC 226 at [3] per Byrne J. In neither case was the judge required to determine this precise issue.
Counsel for Mrs Veneziale relies on the Calderbank offer made by Mrs Veneziale on 3 May 2011 and asserts that as the distribution to Mrs Veneziale will exceed that sum and the defendant was unreasonable in refusing the offer, his costs thereafter should be borne by him personally. It is correct that the distribution to Mrs Veneziale will substantially exceed her offer. Given the share she was claiming, which she has been successful in obtaining, that all the evidence was filed by the time of the offer, that the defendant had had the benefit of legal advice on that evidence, although by then unrepresented, that more costs were to be incurred if the case proceeded to trial, and that sufficient time was afforded to the defendant to consider the offer and obtain more advice if he so chose, I accept the plaintiff’s submissions that the defendant was unreasonable in refusing the offer.
The difficulty for Mrs Veneziale is that the offer did not in terms warn the defendant that if not accepted he risked being required to pay the costs personally. It warned only that the plaintiff may apply for an order that the estate pay her costs from the date of the letter on an indemnity basis.[10] This is a more limited gain for the plaintiff than the defendant being required to bear the costs personally, but given that the defendant was unrepresented at this time, I consider that the letter should be strictly construed against the plaintiff .
[10]Letter to the defendant dated 3 May 2011, exhibited as TT-4 to the affidavit of Trang Thuy Tran sworn 1 December 2011 in S CI 2009 9120.
In reaching this conclusion I have also had regard to the fact that the other plaintiffs only seek payment of their legal costs by the estate, not by the defendant personally, but on an increased i.e. indemnity basis, in respect of the failure of the defendant to accept their offers of compromise. While it may be possible for there to be different outcomes in respect of different plaintiff’s costs, I do not think it desirable. For both these reasons, I will order that all plaintiffs’ costs be paid by the estate on an indemnity basis from the relevant date in respect of that plaintiff, but not by the defendant personally. The relevant date for Mrs Veneziale is 3 May 2011, being the date stipulated as such in her letter of that date. The other plaintiffs seek that their relevant date be 28 April 2011. This is the date of their offer of compromise, but the Rules provide that the relevant date is the date of service, not issue.[11] The affidavit of Anthony Desiderio sworn 8 December 2011 avers that the defendant was served “on or about 28 April 2011”[12] but the means of service is not in evidence and the defendant was unrepresented at this point. If the offer was posted to him, he would have received it at some point after 28 April 2011. For simplicity, I will assume that the date of receipt was 3 May 2011, so that the same date applies for all plaintiffs.
[11]Rule 26.08(2)(b).
[12]Paragraph 14.
As to the amount of costs to be allowed, I consider this is best dealt with by allowing any party to seek a taxation of any other party’s costs to be borne by the estate, whether those costs have already been paid or not. The former solicitors for the defendant have asserted that all the costs paid to them were incurred in defence of the claims, and I do not consider it appropriate to assume otherwise without the detailed examination afforded by taxation. I will put a time limit on the period within which a taxation may be sought, as a taxation until its completion may prevent some or all of the monies held in Court being paid out to beneficiaries.
The plaintiffs’ costs
Mrs Veneziale has sought that my orders fix her costs, while preserving the right to challenge on taxation the quantum of other parties’ costs. I consider that the same approach in relation to quantum should be taken to all costs, and that I should not fix the costs and any party can require a taxation. In the absence of such a taxation being required within the specified period, the amount sought by or already paid in respect of that party ‘s costs will stand as the amount to be paid by the estate. There is no application that any of the plaintiffs’ costs not be paid by the estate, and as they have succeeded in their claims in my view the usual approach, that their costs are paid by the estate, should apply.
I will make provision in the judgment for payment of the costs of Mrs Veneziale of the defendant’s application to re-open his case in the fixed sum she seeks, by adjustment of the defendant’s share if necessary. For consistency, I will also permit the plaintiffs in the other proceedings to seek payment of their costs of that application personally by the defendant. As they have not proposed a fixed sum in their proposed judgment, any such costs would require agreement or taxation.
Effect on distribution to the defendant
It is not possible to finally determine by these orders the amount each of the parties will now receive from the estate, as the funds that have been paid into Court may attract some interest, and I will permit, as indicated, any party to require a taxation of another party’s costs within a limited period. There may also be other adjustments required for other proper expenses of the estate. However, preliminary calculations suggest that my orders will substantially deplete the amount that would otherwise be available to the defendant as beneficiary to the extent of one half of the net estate. I attach these preliminary calculations as an annexure to this judgment.
I am conscious that the amount distributed to the defendant once account is taken of the amounts he must bear personally may be less than sufficient to purchase a home for him. I referred at paragraph 105 of my earlier Reasons to the desirability of sufficient funds being available to him after these proceedings for that purpose, and at that time contemplated that the further provision I would order be made for the plaintiffs would still leave him that sum. At that time, of course, I was unaware of the amount of the parties’ costs, the fact that offers had been made and not accepted, and, most significantly, what amounts, if any, of the debts burdening the principal estate asset, the home, the defendant should be required to bear personally. It is that last factor that has most significantly depleted the funds otherwise to be distributed to him. This may be an unfortunate result from the perspective of the defendant, but in my view it does not change what is appropriate. To the extent the defendant now will receive less than might have been anticipated it is because of his own decisions in the past, and the consequences are so appropriately to be borne by him.
Implementation
As a mechanical matter, the estate now largely consists of funds held in Court being the balance of the proceeds of sale of the testator’s home. Funds in Court are usually paid out on originating motion issued by the party seeking payment. Given the long procedural history of this matter and the need to minimise any further legal costs I will dispense with the requirement of an originating motion and make orders in these proceedings for payment out. I will permit any party to make application for payment out on affidavit filed in these proceedings setting out the amount sought, how calculated and whether any taxation of any party’s costs has been sought by any party. In the event a taxation has been sought then until its conclusion any amount sought to be paid out must allow for possible change to the costs to be paid by the estate.
In the event that a party disagrees with the approach to calculation or preliminary figures set out in the annexure, that party may utilise the liberty to apply or set out the approach and amount he or she seeks in the affidavit seeking payment out. Enquiries as to interest payable, so as to obtain the figure on the day the order to pay out is made may be made to the Funds in Court office. The liberty to apply may not be utilised to disagree with the nature of the amounts to be borne by the defendant personally or any of the other matters determined by me in principle in these or my earlier Reasons, only as to the arithmetical calculation of those amounts or any other matter of implementation.
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