Brock v Foord - [2003] NSWSC 1125

CITATION: Brock v Foord [2003] NSWSC 1125

HEARING DATE(S): Tuesday, 16 September 2003

JUDGMENT DATE:
2 December 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Master McLaughlin

DECISION: (1) I order that the Defendant pay the costs of the Plaintiffs of the proceedings after 29 November 2001, such costs to be on the indemnity basis; (2) I order that the Defendant pay the remuneration and the costs of Kevin Richard Shirlaw, including any legal costs as administrator of the estate of the late Joyce Isabel Holyhead ("the Deceased"); (3) I order that the Defendant pay the costs of the Plaintiffs of the notice of motion filed by the Plaintiffs on 1 August 2003; (4) I order that the notice of motion filed by the Defendant on 10 February 2003 be dismissed.

CATCHWORDS: Costs - Probate - Refusal of Defendant, an executor, to join with Plaintiffs, other executors, in an application for probate - Complaints by Defendant against conduct of First Plaintiff - Appointment of administrator - Conduct of First Plaintiff exonerated by administrator - Indemnity costs.

CASES CITED: Cultus Petroleum NL v OMV Australia Pty Limited BC 9902283; [1999] NSWSC 435
Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited (1988) 81 ALR 397
Oshlack v Richmond River Council (1998) 193 CLR 92
Wentworth v Rogers BC 9907174; [1999] NSWCA 403

PARTIES :
Adrian Gerald Brock (First Plaintiff)
Jennifer Robin Brock (Second Plaintiff)
Rosalyn Joy Donohoo (Third Plaintiff)
Bronwyn Sue Foord (First Defendant)

FILE NUMBER(S): SC 107681/01

COUNSEL: G. Lindsay SC (Plaintiffs)
W. Haffenden (Defendant)

SOLICITORS: The Argyle Partnership (Plaintiffs)
Kenneally & Co, Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 2 December 2003

107681/01 ADRIAN BROCK and ORS -v- BRONWYN SUE FOORD

JUDGMENT

1 MASTER: These proceedings relate to the estate of the late Joyce Isabel Holyhead (to whom I shall refer as “the Deceased”), who died on 26 December 1999.

2 There are presently before the Court two opposing applications in respect to costs, one by the Plaintiffs, the other by the Defendant. I shall shortly set forth details of each of those applications. It is appropriate, however, that I should at the outset recount, at least in summary, the factual background to and the procedural history of this matter.

3 The proceedings were precipitated by the lodgement by Bronwyn Sue Foord of a caveat against the grant of probate of the will of the Deceased dated 22 March 1994.

4 In consequence, the Plaintiffs, Adrian Brock, Jennifer Brock, and Rosalyn Donohoo, on 23 October 2001 filed a notice of motion for an order that the caveat cease to be in force. Pursuant to orders made by Justice Windeyer on 10 December 2001 those Plaintiffs filed a statement of claim in the Probate List of the Equity Division on 21 December 2001.

5 By that statement of claim the Plaintiffs sought a grant of probate in solemn form of the will of the Deceased executed on 22 March 1994,…

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 Brock v Foord

Details

AGLC: Brock v Foord [2003] NSWSC 1125
Case: [2003] NSWSC 1125
Decision Date: 2 December 2003

CaseChat Overview and Summary

In the case of Brock v Foord, the dispute arose between the executors of an estate, with the plaintiffs seeking costs from the defendant. The defendant, an executor, had refused to join the plaintiffs, who were also executors, in an application for probate. This refusal led to the appointment of an administrator, who subsequently exonerated the first plaintiff from the complaints raised by the defendant regarding their conduct. The legal issues before the court included whether the defendant was entitled to indemnity costs due to the refusal to join the plaintiffs in the application for probate and whether the exoneration by the administrator precluded the first plaintiff from being liable for costs.

The court considered whether the defendant's refusal to join in the application for probate was justified and whether it was reasonable for the defendant to seek indemnity costs in these circumstances. The court found that the defendant's refusal was not reasonable given the context of the estate administration and the conduct of the first plaintiff. Furthermore, the exoneration by the administrator effectively absolved the first plaintiff from any liability in relation to the defendant's complaints, which further impacted the defendant's ability to seek indemnity costs. The court determined that the defendant was not entitled to indemnity costs due to the lack of justification for their refusal to join in the probate application and the exoneration by the administrator.

The court's decision was that the defendant was not entitled to indemnity costs. The reasoning was based on the unreasonable nature of the defendant's refusal to join in the probate application and the exoneration of the first plaintiff by the administrator. The court held that the defendant's actions did not warrant indemnity costs, and the exoneration by the administrator further negated any claim for costs against the first plaintiff. This decision underscores the importance of cooperation among executors in estate administration and the consequences of unreasonable refusals to act jointly in probate matters.

Orders