(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Auxiliary Justice Buss)
1 November 2024
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - OTHER MATTERS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INTEREST ON COSTS
Following the dismissal of the appeal in Brougham v Edwards [2024] SASCA 59, and the High Court’s refusal of the application for special leave to appeal, it is necessary to address the costs of the appeal.
The appeal upheld the appellant’s removal and replacement as the trustee of the Brougham Farm Trust (the Trust). His attempted exercise of powers as trustee to transfer the principal asset of that Trust, the Brougham farm, to himself, remained ineffectual.
The appellant sought an order as to costs, similar to that awarded by the primary judge, that his and the respondent’s costs be paid out of Trust, with those costs to be agreed or taxed on a solicitor/client basis. He contended that there should be no order as to the costs of the first interested party.
The respondent trustee sought an order that the appellant pay his costs of the appeal on a standard costs basis, but that he should otherwise be reimbursed his costs of the appeal from the Trust on an indemnity basis.
The first interested party sought an order that the appellant pay the costs of the respondent and the first interested party on a standard costs basis or, in the alternative, that her costs be paid out of Trust.
The second interested party did not participate in the appeal and made no claim for costs.
Held (the Court):
1. On appeal, the appellant acted in his own self-interest and the costs he incurred were not proper and incidental to the administration of the Trust. The ordinary approach to costs following adversarial litigation applies.
2. The appellant is to pay the costs of the respondent, to be agreed or taxed on a standard costs basis. The appellant is not to be indemnified for adverse costs or for his own appeal costs from Trust.
3.After allowance for the payment of costs by the appellant, the respondent will be reimbursed his costs and expenses incurred on appeal from Trust, to be agreed or taxed on a solicitor/client basis.
4. The approach taken to the joinder of intervenors will be relevant to but not necessarily determinative of the circumstances which the court will take into account when determining whether an interested party should be joined. Similar considerations will remain relevant to and inform the exercise of the court’s discretion as to the costs concerning an interested party under s 40 of the Supreme Court Act 1935 (SA) and r 194.1 of the Uniform Civil Rules 2020 (SA).
5.The role and involvement of the first interested party does not appear to…
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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Details
AGLC
Brougham v Edwards (No 2) [2024] SASCA 129
Case
[2024] SASCA 129
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal from a decision of the primary judge regarding the trusteeship of the Brougham Farm Trust. The dispute arose after the appellant, the original trustee, fell into disagreement with his father, the appointor, over the control of the Trust and its principal asset. The appointor subsequently replaced the appellant and appointed himself and the respondent as joint trustees. The respondent, as executor of the deceased appointor's estate, sought declarations confirming the validity of these appointments and that the appellant's subsequent transfer of the farm to himself was invalid. The primary judge upheld the respondent's appointment and rejected the appellant's transfer. The appellant's appeal to this Court focused on whether the declarations and orders made by the primary judge exceeded the proper scope of an application for advice or direction.
The Court was required to determine whether the appellant could raise new issues concerning the jurisdiction of the primary judge and the breadth of the declarations made, and whether the appellant had failed to raise his entire case at trial. Specifically, the Court considered whether it was too late for the appellant to argue that the power of appointment exercised was fiduciary and that his own appointment as a joint trustee raised the doctrine of fraud on a power. The Court also had to consider the costs of the appeal, including the reimbursement of the respondent's costs and expenses from the Trust and the apportionment of the first interested party's costs.
The Court rejected the appellant's attempt to raise new issues on appeal, finding that it was incumbent upon him to present his whole case at trial. Consequently, the appellant's appeal was dismissed. The Court ordered that the appellant pay the costs of the respondent and one half of the costs of the first interested party on a standard costs basis. The appellant was also ordered not to be indemnified for adverse costs or his own appeal costs from the Trust. Following these orders, the respondent was to be reimbursed his appeal costs and expenses from the Trust on a solicitor-client basis. The appellant was further ordered to pay the costs of the respondent and the first interested party concerning the resolution of the appeal costs.
Orders
Orders of the court
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Background
Background to the litigation
After allowance for the payment of his costs by the appellant, the respondent should be reimbursed for his costs and expenses incurred on appeal from the Trust, to be agreed or taxed on a solicitor/client basis.Background - the issues at trial and on appeal The appellant was appointed the trustee of the Trust by his parents as the appointors under the Brougham Farm Trust Deed. After his mother died and the appellant fell into dispute with his father over the control of the Trust and its principal asset, the Brougham farm, Peter Brougham exercised his powers as appointor to replace the appellant and appoint himself and the respondent as joint trustees. Mr Peter Brougham and the respondent commenced these proceedings in order to obtain declarations and orders confirming that they were validly appointed as joint trustees and that the appellant was no longer a trustee when he purported to exercise the powers of a trustee and transfer the Brougham farm to himself. Before the trial, Mr Peter Brougham died. The respondent was appointed executor of the deceased estate of Mr Peter Brougham. The appellant’s sisters, Ms Paula Brougham (the first interested party) and Ms Corenna Sally Brougham (the second interested party) were joined by the respondent, without any opposition from the appellant. After construing the Brougham Farm Trust Deed, the primary judge upheld the respondent’s appointment and rejected the appellant’s purported transfer. Declarations and associated orders were made. On appeal, the appellant did not challenge the detailed findings and rulings made by the primary judge regarding these matters, save that he contended that the declarations and orders went beyond the proper scope of a ruling on an application for advice or direction under s 91 of the Trustee Act 1936 (SA) (the Trustee Act) and s 69 of the Administration and Probate Act 1919 (SA). This Court rejected the appellant’s belated attempt to raise new issues about jurisdiction and whether the declarations were impermissibly broad. This Court also found that it was incumbent upon the appellant to raise his whole case at trial and that it was too late for him to raise new issues about whether the power of appointment exercised by Mr Peter Brougham was a fiduciary power (with the result that it was necessary to consult with beneficiaries including the appellant before it was exercised) as well as whether his appointment of himself as a joint trustee raised the operation of the equitable doctrine of fraud on a power. Accordingly, the appellant failed. The respondent and first interested party succeeded on appeal. Events following dismissal of the appeal When the appeal was dismissed, the parties agreed to a stay pending an application for special leave to appeal by the appellant. In the meantime, the parties delivered written submissions on costs. On 10 October 2024, the High Court refused special leave to appeal with costs.[3] [3] Brougham v Edwards & Ors [2024] HCASL 269, [2]. The High Court found that there was insufficient reason to doubt the correctness of the decision of the Court of Appeal and that it did not raise an issue of general importance.The role of the appellant on the appeal
Evidence
Evidence Before The Court
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Decision
Reasons for decision
For essentially the same reasons, the first interested party has no further claim from the Trust for the balance of her appeal costs. By reason of the order made against the appellant, the first interested party has been adequately compensated for her appeal costs having regard to the extent to which her submissions were of assistance to the Court and did not duplicate the submissions of the respondent trustee. The consequence is that the first interested party must bear the balance of her own costs.Conclusion The Court will make the following orders as to costs:1.The appellant is to pay the costs of the respondent and one half of the costs of the first interested party, to be agreed or taxed on a standard costs basis. 2.The appellant is not to be indemnified for adverse costs or for his own appeal costs from the Trust. 3.After allowance for the payment of costs by the appellant, the respondent will be reimbursed his costs and expenses incurred on appeal from the Trust, to be agreed or taxed on a solicitor/client basis.4.The appellant is to pay the costs of the respondent and the first interested party in connection with the resolution of the costs of the appeal, to be agreed or taxed on a standard costs basis.