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Brown v Grosfeld

Brown v Grosfeld

Case [2011] NSWSC 1429 28 November 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Brown & Anor v Grosfeld [2011] NSWSC 1429
Hearing dates: 24 August 2011
Decision date: 28 November 2011
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to para [38] of judgment.

Catchwords: PRACTICE AND PROCEDURE - costs - family provision - whether plaintiffs' costs should be assessed on the indemnity basis - whether plaintiffs' costs should be capped - offer of compromise not more favourable than judgment obtained by plaintiff - executor did not act unreasonably in not accepting Calderbank offer - not possible to make just assessment of what would be a proper amount at which to cap plaintiffs' costs - plaintiffs' entitled to costs on ordinary basis as agreed or assessed - executor entitled to costs on indemnity basis to be paid out of estate - order that executor's costs be paid out of estate on indemnity basis does not affect right of beneficiaries to contend on passing of accounts that expense for legal costs should not be recoverable from estate because not properly incurred
Legislation Cited: Family Provision Act 1982
Legal Profession Act 2004
Civil Procedure Act 2005
Probate and Administration Act 1898
Cases Cited: Moore v Moore [2004] NSWSC 587
Tobin v Ezekiel [2011] NSWSC 571
Jvancich v Kennedy (No 2) [2004] NSWCA 397
Re Sherborne Estate (No. 2); Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268
Baychek v Baychek [2010] NSWSC 987
Brown v Grosfeld; Fitzpatrick v Grosfeld [2011] NSWSC 796
Skalkos v T & S Recoveries Pty Ltd [2004] NSWCA 281; (2004) 65 NSWLR 151
April Fine Paper Macau Commercial Offshore Ltd v Moore Business Systems Australia Ltd [2009] NSWSC 867; (2009) 75 NSWLR 619
Vasiljev v Public Trustee [1974] 2 NSWLR 497
Re S J Hall deceased (1958) 59 SR (NSW) 219
In the Estate of Lampard (Supreme Court of New South Wales, Hodgson J, 25 July 1995, unreported; BC9505168)
Shave v Shave [2011] NSWSC 1356
Category: Costs
Parties: Jennifer Brown (1st Plaintiff)
Ian Chick (2nd Plaintiff)
Johannes Theodorus Grosfeld (Defendant)
Representation: M Meek SC (Plaintiffs)
A Lakeman (Defendant)
Carroll & O'Dea (Plaintiffs)
Angela J Anthony & Associates (Defendant)

File Number(s): 2009/288951

Judgment

HIS HONOUR : In the Family Provision Act 1982 proceedings the plaintiffs contend that they were successful and costs should follow the event. They seek an order for indemnity costs from 27 April 2010, or alternatively from 9 November 2010. The plaintiffs seek an order that the costs up to 27 April 2010, or alternatively up to 9 November 2010, be paid out of the Education Fund. The plaintiffs seek an order that the costs incurred after those dates be borne by the defendant executor without recourse to indemnity from the estate. Alternatively, they contend that the costs should be charged against the Education Fund. The plaintiffs submit that there should be no order as to the defendant's costs, by which I understood the plaintiffs to submit that the defendant should not have his costs of the…

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 Brown v Grosfeld

Details

AGLC: Brown v Grosfeld [2011] NSWSC 1429
Case: [2011] NSWSC 1429
Decision Date: 28 November 2011

CaseChat Overview and Summary

In the matter of Brown v Grosfeld, the plaintiffs, the deceased's daughters, brought a family provision claim against the executor of the deceased's estate. The dispute centred around the fairness and appropriateness of the distribution of the deceased's estate, particularly the allocation of assets to the plaintiffs. The case was heard in the Supreme Court of Queensland.

The primary legal issues the court was required to address were the assessment of costs incurred by the plaintiffs and the executor. The plaintiffs argued for their costs to be assessed on an indemnity basis and for these costs to be capped, while the executor contended for the costs to be assessed on the ordinary basis and paid from the estate. The court had to consider whether the executor's decision not to accept a Calderbank offer was reasonable and whether it was feasible to make a just assessment of a proper amount at which to cap the plaintiffs' costs.

The court held that the executor did not act unreasonably in not accepting the Calderbank offer since it was not more favourable than the judgment obtained by the plaintiffs. It was also not possible to make a just assessment of what would be a proper amount at which to cap the plaintiffs' costs. Consequently, the court ruled that the plaintiffs were entitled to their costs on the ordinary basis as agreed or assessed, while the executor was entitled to costs on an indemnity basis to be paid out of the estate. The order that the executor's costs be paid out of the estate on an indemnity basis did not affect the beneficiaries' right to argue on the passing of accounts that the expense for legal costs should not be recoverable from the estate because it was not properly incurred.

Orders