Ballard v Ballard (No 2) - [2020] NSWSC 1687

Supreme Court

New South Wales

Medium Neutral Citation: Ballard v Ballard (No 2) [2020] NSWSC 1687
Hearing dates: 25 November 2020
Date of orders: 25 November 2020
Decision date: 25 November 2020
Jurisdiction: Equity
Before: Parker J
Decision:
See [46]

Catchwords:
COSTS – party/party – specific court rules in relation to costs – application of Uniform Civil Procedure Rules 2005 (NSW), r 42.19(2) – plaintiff discontinues proceedings brought as trustee – whether the Court should make no order as to costs – constitution of proceedings defective – plaintiff failed to obtain judicial advice – plaintiff to pay defendant’s costs apart from unsuccessful application to transfer proceedings to Family Court

Legislation Cited:
Trustee Act1925 (NSW), s 63
Trusts Act 1973 (Qld)
Uniform Civil Procedure Rules 2005 (NSW), r 42.19(2)

Cases Cited:
Application of Rinehart: 2020/142504 [2020] NSWSC 1624
Ballard v Ballard [2020] NSWSC 778

Category: Costs
Parties: Timothy Lawrance Ballard (Plaintiff)
Jennifer Elaine Ballard (Defendant)
Representation:
Solicitor Advocate:
A Holmes (Plaintiff)

Counsel:
A Justice (Defendant)
Solicitors:
Adrian Holmes Lawyer (Plaintiff)
Schofield Muir Lawyers (Defendant)

File Number(s): 2019/239029
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 30 November 2020

The plaintiff in these proceedings seeks to discontinue them. The defendant consents to the discontinuance. The parties are in dispute about costs.
The plaintiff and the defendant were formerly husband and wife. They were married in December 1996. They separated in March 2018 and were divorced in August 2019. They have three children, aged twenty, eighteen and sixteen.
The proceedings concern three testamentary trusts established by Mr Ballard's mother for the benefit of Mr and Mrs Ballard's children. I will refer to those testamentary trusts as “the Trusts”.
Mr Ballard's mother was domiciled in Queensland. She died in July 2008. Her will appointed two of her friends, Kevin Steele and Susan Whitnill, as her executors and as trustees of the Trusts.
In April 2012 the Supreme Court of Queensland appointed Mr Ballard as trustee of the Trusts in place of Ms Whitnill. It seems that Mr Steele had by that point resigned.
According to Mr Ballard's evidence, he assumed control of the trust property in June 2013. The property at that stage consisted of the sum of about $717,000 held on term deposit. Mr Ballard transferred the money to a newly opened current account in the name of the Trusts. As I will describe in a moment, over the following years he drew down on those accounts to pay for home renovations and family expenditure. By December 2019, which is the date of the last statement in evidence, the balance had been reduced to $395,000. I was told in July this year that the balance had by that stage reduced further to $383,000.
The background of the proceedings is set out in a judgment delivered by the Chief Judge on an earlier interlocutory application in the proceedings: Ballard v Ballard [2020] NSWSC 778. For present purposes I summarise it as follows.
For the last eleven years of their…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ballard v Ballard (No 2)

Details

AGLC: Ballard v Ballard (No 2) [2020] NSWSC 1687
Case: [2020] NSWSC 1687
Decision Date: 25 November 2020

CaseChat Overview and Summary

In the Family Court of Australia, Ballard v Ballard (No 2) involved a dispute between a husband and wife regarding the distribution of their assets. The husband brought proceedings as the trustee of a discretionary trust, claiming a beneficial interest in the trust assets. The wife sought to have the proceedings dismissed and an order for costs against the husband. The central legal issues were whether the court should make no order for costs under Uniform Civil Procedure Rules 2005 (NSW), rule 42.19(2), given the plaintiff had discontinued the proceedings, and whether the wife was entitled to costs as the successful respondent. The court found that the proceedings were defectively constituted, as the husband had not obtained judicial advice before bringing the action as trustee. Despite the husband discontinuing the proceedings, the court held that the wife was entitled to costs because the proceedings were fundamentally flawed. The husband was ordered to pay the wife's costs, excluding those related to the unsuccessful application to transfer the case to the Family Court.

Orders