Bath v Perpetual Trustees WA Ltd as Executors of the Estate of Sheila Catherine Kolecki

[2000] WASC 255

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BATH -v- PERPETUAL TRUSTEES WA LTD as Executors of the Estate of SHEILA CATHERINE KOLECKI & ORS [2000] WASC 255

CORAM:   MASTER SANDERSON

HEARD:   21 SEPTEMBER 2000

DELIVERED          :   18 OCTOBER 2000

FILE NO/S:   CIV 2303 of 1999

MATTER                :Section 7 of the Inheritance (Family and Dependants Provision) Act 1972

BETWEEN:   MARY AIRD BATH

Plaintiff

AND

PERPETUAL TRUSTEES WA LTD as Executors of the Estate of SHEILA CATHERINE KOLECKI
First Defendant

PERPETUAL TRUSTEES WA LTD as the Executor of the Estate of WLADYSLAW KOLECKI
Second Defendant

WILLIAM RUSSELL
Third Defendant

Catchwords:

Practice and procedure - Costs - Turns on its own facts

Legislation:

Nil

Result:

Each party to bear their own costs

Representation:

Counsel:

Plaintiff:     Ms M M N Lim

First Defendant             :     Ms A T L Kho

Second Defendant         :     Ms A T L Kho

Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Mallesons Stephen Jaques

Second Defendant         :     Mallesons Stephen Jaques

Third Defendant           :     No appearance

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Bondelmonte v Blanckensee [1989] WAR 305

Cannell v Seary - Estate of Talbot & Anor, unreported; SCt of NSW; BC9804387; 22 August 1998

Clayton v Aust (1993) 9 WAR 364

Hope v Lyon [1999] NSWSC 532

In Re Coventry (Dec) [1980] Ch 461

O'Brien v Trustees of Western Australia Ltd as Executor of the Estate of O'Brien (Dec) [2000] WASC 33

1. MASTER SANDERSON:  On 21 September 2000 I delivered judgment in this matter dismissing the plaintiff's originating summons.  I reserved the question of costs as, at the time the judgment was handed down, the parties had not had the opportunity to consider my reasons and were not in a position to make submissions with respect to costs.  All parties were invited to make submissions in writing and all have done so.  The plaintiff's application was brought under the provisions of the Inheritance (Family and Dependants Provision) Act 1972.  The plaintiff sought an extension of time within which to commence proceedings.  Her application was dismissed.  Bearing in mind the nature of the claim made by the plaintiff, I am minded to order that the costs of all parties be paid out of the estate.  However, there is a difficulty.  The estate of the deceased has been fully distributed and there is no corpus from which costs could be paid.  In the circumstances such an order would be inappropriate. 

2. There is no easy way to resolve the question of costs in this matter.  After taking into account all the submissions put by each of the defendants it seems to me that the proper course is to make no order as to costs.  I appreciate that this order has significant consequences for the first defendant who will be unable to recover the costs that it has incurred because the estate of which it is executor has been fully distributed.  Nonetheless, it seems to me that the first defendant should bear these costs as an incident of its being an executor of the estate of the deceased.  I am not satisfied that it would be proper or appropriate to order the first defendant's costs to be borne by the plaintiff.  The same considerations do not apply to the costs of the second defendant as they would be entitled to an indemnity from the estate in any circumstances.

3. The order then will be that each party bears their own costs.