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Barrett v Barrett

Barrett v Barrett

Case [2019] NSWSC 1359 11 October 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Barrett v Barrett [2019] NSWSC 1359
Hearing dates: 27 September 2019
Date of orders: 11 October 2019
Decision date: 11 October 2019
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The defendant’s costs are to be paid out of the estate on an ordinary basis.
(2) The executor’s costs are to be paid out of the estate on an ordinary basis.
Catchwords: COSTS – Indemnity costs – Where the plaintiff acted unreasonably as executor in ordering the defendant to vacate a property under the estate – No point of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 98
Succession Act 2006 (NSW), s 99
Uniform Civil Procedure Rules, rr 12.7, 13.4, 42.1
Cases Cited: Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33
Berbett Pty Ltd v Hansa [1976] VR 385.
Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248
Cretazzo v Lombardi (1975) 13 SASR 4
Harkness v Harkness (No 2) [2012] NSWSC 35
Hillebrand v Council of the City of Penrith [2000] NSWSC 1058
In re Beddoe; Downes v Cottam [1893] 1 Ch 547
Jvancich v Kennedy (No 2) [2004] NSWCA 397
Liverpool City Council v Estephan [2009] NSWCA 161
McDonald v Horn [1995] 1 All ER 961
Milne v Attorney-General (Tas) (1956) 95 CLR 460
Oshlack v Richmond River Council (1998) 193 CLR 72; (1998) 152 ALR 83
Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121
Rowland v Portus (1906) 6 SR (NSW) 74
Singer v Berghouse (1993) 114 ALR 521
Tadrous v Tadrous [2009] NSWSC 407
Texts Cited: G Dal Pont, The Law of Costs (LexisNexis Butterworths, 4th ed, 2018)
Category: Procedural and other rulings
Parties: Christopher John Barrett, Executor of the Estate of the late Beryl Barrett (Plaintiff)
Ian Francis Barrett (Defendant)
Representation:
Counsel:
D C Eardley with A Galapo (Plaintiff)
F Sinclair (Defendant)
Solicitors:
Falzon Legal (Plaintiff)
William & Co (Defendant)

File Number(s): 2019/78155
Publication restriction: Nil

Judgment

HER HONOUR: These proceedings have resolved, leaving only the issue of costs remaining. The plaintiff seeks his costs on an indemnity basis and a gross sum costs order to be paid out of the deceased’s estate. The defendant seeks his costs on an indemnity basis, or alternatively on an ordinary basis, to be paid out of the deceased’s estate.
The plaintiff is Christopher John Barrett (“the executor”), executor of the estate of the late Beryl Barrett. The defendant is Ian Francis Barrett. The executor and defendant are brothers. The executor relied upon his affidavits dated 30 May 2019 and 15 July 2019. The defendant relied upon his affidavit dated 10 September 2019 and a court book. Mr Eardley of counsel, with Mr Galapo of counsel, appeared for the executor. Ms Sinclair of counsel appeared for the defendant. The defendant was present in court.
On 11 March 2019, the executor commenced proceedings seeking that the defendant be injuncted from entering,…

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 Barrett v Barrett

Details

AGLC: Barrett v Barrett [2019] NSWSC 1359
Case: [2019] NSWSC 1359
Decision Date: 11 October 2019

CaseChat Overview and Summary

In the matter of Barrett v Barrett, the parties involved were the plaintiff, Barrett, and the defendant, Barrett. The dispute centred around the plaintiff's actions as executor of an estate, where the plaintiff ordered the defendant to vacate a property under the estate. The defendant sought an order for costs on an indemnity basis, arguing that the plaintiff had acted unreasonably in making the order. The case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the plaintiff's actions as executor were unreasonable, justifying an order for indemnity costs. The court had to consider the principles of executor conduct and whether the plaintiff's actions were unreasonable and not supported by any point of principle. The defendant argued that the plaintiff's decision to order the defendant to vacate the property was unreasonable and without merit.

The court found that the plaintiff's conduct as executor was unreasonable, and that there was no point of principle in the plaintiff's actions. The court held that the defendant was entitled to an order for costs on an indemnity basis, as the plaintiff had acted unreasonably and without justification. The court emphasised the importance of executors acting reasonably and in accordance with their duties and responsibilities.

The final orders of the court were that the defendant was entitled to an order for costs on an indemnity basis, and that the plaintiff was liable for the defendant's costs of the proceedings. The court's decision highlights the importance of executors acting reasonably and in accordance with their duties, and the potential consequences of acting unreasonably.

Orders