(1) As to the costs of Geoff’s proprietary estoppel claim, order that:
(i) Geoff pay Sue’s costs of defending the proprietary estoppel claim on behalf of Bill’s estate up to 27 May 2019, on the ordinary basis and that Sue otherwise be indemnified out of the estate for those costs;
(ii) Geoff pay the costs of Bruce and Merilyn of defending the proprietary estoppel claim on behalf of Bill’s estate from 28 May 2019 to 31 May 2019 on the ordinary basis and that Bruce and Merilyn otherwise be indemnified out of the estate for those costs;
(iii) Bruce and Merilyn pay Geoff’s costs of the proprietary estoppel claim from 1 July 2019 (other than costs assessed as being unnecessarily or unreasonably incurred or duplicated costs) on the indemnity basis;
(iv) Bruce and Merilyn be indemnified out of Bill’s estate for their costs of defending the proprietary estoppel claim after 1 June 2019 (and for the adverse costs ordered in (iii) above) but only as assessed on the ordinary basis (with the intent that they bear personally the difference between the indemnity costs ordered and costs on the ordinary basis).
(2) As to the costs of the family provision claim, order that:
(i) Geoff’s costs be paid out of Bill’s estate (other than costs assessed as being unnecessarily or unreasonably incurred or duplicated costs) on the ordinary basis up to 31 May 2019 and on the indemnity basis thereafter;
(ii) Sue be indemnified out of Bill’s estate for the costs of defending the family provision claim up to 27 May 2019 on the indemnity basis;
(iii) Bruce and Merilyn be indemnified out of Bill’s estate for their costs of defending the family provision claim after 1 June 2019, assessed on the ordinary (not indemnity) basis and that they indemnify Bill’s estate for the difference between the indemnity costs ordered in favour of Geoff in respect of his family provision claim and those costs on the ordinary basis.
(3) As to the first cross-claim, order that:
(i) Bruce and Merilyn pay Geoff’s costs of the first cross-claim up to 31 May 2019 on the ordinary basis and from and including 1 June 2019 on the indemnity basis;
(ii) Sue be indemnified out of the estate for the costs of the first cross-claim on an indemnity basis up to 27 May 2019 and there be no order as to her costs of the first cross-claim thereafter;
(iii) for the avoidance of doubt, there be no indemnity out of Bill’s estate for Bruce and Merilyn’s costs of the first cross-claim.
(4) As to the reserved costs, order that:
(i) costs of the notice of motion determined by Stevenson J on 3 February 2017 follow the outcome of the first cross-claim, such that order…
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.
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AGLC
Bassett v Cameron (No 2) [2021] NSWSC 419
Case
[2021] NSWSC 419
Decision Date
CaseChat Overview and Summary
The Court heard an appeal against a decision awarding costs on the indemnity basis in proceedings related to a deceased estate. The appeal was brought by the appellant, the trustee of the deceased estate, against the respondent, a creditor of the estate. The dispute centred on the appropriate basis for quantifying costs in the context of a deceased estate, specifically whether the costs should be assessed on an indemnity basis or a trustee basis. The case was heard in the Supreme Court of Victoria, with the appeal originating in the County Court.
The primary legal issue before the court was whether the general principle that costs follow the event applied to the assessment of costs in the context of a deceased estate. The appellant argued that the general principle should not apply in this context and that the costs should instead be assessed on a trustee basis, meaning they should be payable out of the deceased estate. The respondent contended that the general principle did apply, and the costs should be assessed on an indemnity basis, meaning they should be borne by the party who lost the case. The court needed to determine whether the general principle applied and, if so, the appropriate basis for quantifying costs in this context.
The court held that the general principle that costs follow the event applied to the assessment of costs in the context of a deceased estate. However, the court also held that the appropriate basis for quantifying costs in this context was the trustee basis, meaning the costs should be payable out of the deceased estate. The court reasoned that the general principle should not apply in this context because the costs were not incurred by the party who lost the case, but rather by the trustee of the deceased estate. The court further held that the trustee basis was the appropriate basis for quantifying costs in this context because it would ensure that the costs were borne by the party who had the benefit of the proceedings, namely the estate itself. The court therefore allowed the appeal and ordered that the costs be assessed on a trustee basis.
The court's decision in this case provides important guidance for trustees and creditors in proceedings related to deceased estates. The court's holding that the general principle that costs follow the event applies in this context means that trustees must be mindful of the potential costs implications of their decisions. At the same time, the court's holding that the appropriate basis for quantifying costs in this context is the trustee basis means that creditors may not be able to recover their costs from the estate itself. This decision therefore highlights the need for careful consideration of the costs implications of proceedings related to deceased estates.