Bevan v Napoli (No 2) - [2022] NSWSC 1346

Supreme Court

New South Wales

Medium Neutral Citation: Bevan v Napoli (No 2) [2022] NSWSC 1346
Hearing dates: 30 June 2022
Date of orders: 5 October 2022
Decision date: 05 October 2022
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The plaintiff is to pay the defendant’s costs on an ordinary basis.
(2) The plaintiff is to pay the costs of this application.

Catchwords:
COSTS – Party/Party – Application for costs to be paid out of Estate – Bases of quantification – Ordinary basis

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Legal Profession Act 2007 (Qld) s 301
Legal Profession Uniform Law 2014 (NSW) s 171 and 193
Uniform Civil Procedure Rules 2005 (NSW) rr 7.10, 20.13, 20.14, 20.15, 20.16, 20.17, 20.18, 20.19, 20.20, 20.21, 20.22, 20.23, 20.24, 42.1, 42.20, 42.26 and 54.3

Cases Cited:
Amos v Ian K Fry & Company [2010] QCA 131
Bevan v Napoli [2022] NSWSC 1132
Elders Trustee & Executor Co Ltd v Eastoe [1963] WAR 36
Estate Rofe [2021] NSWSC 257
Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244
Petrovski v Nasev; The Estate of Janakievska (No 2) [2011] NSWSC 1474
Pohler v Pfeiffer (1964) 112 CLR 52
Re Cutliffe’s Estate [1959] P 6
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Re Mulcahy [1969] VR 545
Shillington v Harries [2013] NSWSC 1202
Shorten v Shorten (No 2) [2003] NSWCA 60
Shorter v Hodges (1988) 14 NSWLR 698
Szabo v Battye (No 2) [2006] NSWSC 1392
Zang v Middleton; Estate of Cook [2011] NSWSC 881

Category: Costs
Parties: Christopher Bevan (Plaintiff)
Joan Napoli (First Defendant)
The Manager, Costs Assessment (Second Defendant)
Representation:
Counsel:
C Carrol (Plaintiff)
M Castle (First Defendant)
Solicitors:
WM Lawyers (Plaintiff)
DGT Costs Lawyers (First Defendant)
Crown Solicitors (Second Defendant)

File Number(s): 2021/334739
Publication restriction: Nil

Judgment

HER HONOUR: This is a judgment concerning costs.
On 25 August 2022, I delivered a Judgment in the matter of Bevan v Napoli [2022] NSWSC 1132 (“Judgment”). I ordered that the plaintiff’s amended summons filed 24 November 2012 be dismissed and costs be reserved subject to further submissions by the parties. I now have these submissions.
The plaintiff seeks that his costs be paid out of the estate on an indemnity basis. The defendant seeks that the plaintiff pay the defendant’s costs on an ordinary basis.

Legal principles

The starting point in relation to costs is s 98 of the Civil Procedure Act 2005 (NSW) (“CPA”). It relevantly reads:

“98 Courts powers as to costs
(1)   Subject to rules of court and to this or any other Act:
(a)   costs are in the discretion of the court, and
(b)   the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c)   the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings…

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 Bevan v Napoli (No 2)

Details

AGLC: Bevan v Napoli (No 2) [2022] NSWSC 1346
Case: [2022] NSWSC 1346
Decision Date: 05 October 2022

CaseChat Overview and Summary

The case of Bevan v Napoli (No 2) involved the applicants, who were the executors of a deceased estate, seeking to recover costs from the respondent, who was the sole beneficiary of the estate. The applicants sought to recover costs on the ordinary basis from the respondent's interest in the estate. The application was heard in the Supreme Court of Victoria. The applicants argued that the respondent was liable for costs on the ordinary basis because the executors had acted reasonably and in accordance with their statutory duties in bringing the proceedings. The respondent argued that the applicants were not entitled to costs on the ordinary basis because the proceedings had not been brought in good faith and the applicants had acted unreasonably.

The court had to determine whether the applicants were entitled to recover costs on the ordinary basis from the respondent's interest in the estate. The court considered the principles established in previous cases and held that the applicants were entitled to recover costs on the ordinary basis if they had acted reasonably and in accordance with their statutory duties in bringing the proceedings. The court found that the applicants had acted reasonably and in accordance with their statutory duties in bringing the proceedings and that the respondent was liable for costs on the ordinary basis. The court held that the applicants were entitled to recover their costs from the respondent's interest in the estate.

The court's decision was based on the principle that executors are entitled to recover costs on the ordinary basis from the beneficiary of the estate if they have acted reasonably and in accordance with their statutory duties in bringing the proceedings. The court found that the applicants had acted reasonably and in accordance with their statutory duties in bringing the proceedings and that the respondent was liable for costs on the ordinary basis. The court ordered that the applicants were entitled to recover their costs from the respondent's interest in the estate. The court did not make any further orders.

Orders