Browne v Browne - [2011] NSWSC 752

Supreme Court

New South Wales

Medium Neutral Citation: Browne v Browne [2011] NSWSC 752
Hearing dates: 18 July 2011
Decision date: 18 July 2011
Jurisdiction: Equity Division
Before: Gzell J
Decision:
Defendant ordered to pay costs on party and party basis

Catchwords: PROCEDURE - Costs - lay executor in selling assets to fund legacy ordered by court distributed the estate without paying balance of legacy - whether indemnity costs should be ordered
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Rouse v Shepherd (No 2) (1994) 35 NSWLR 277
Colgate-Palmolive Pty Ltd v Cussons [1993] FCA 536; (1993) 46 FCR 225
Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721
Category: Procedural and other rulings
Parties: Carol Ann Browne (Plaintiff)
Michael Browne (Defendant)
Representation: Counsel
R Lovas (Plaintiff)
K Morrissey (Defendant)
Solicitors
Pigott Stinson Lawyers (Plaintiff)
Lindsay Brien (Defendant)

File Number(s): 2011/0056898

EX TEMPORE Judgment

In proceedings before Rein J involving the parties to the litigation with which I am concerned, his Honour granted the Plaintiff, in addition to the provisions made by the will and codicil of the deceased, a legacy in the amount of $475,000. His Honour ordered that interest on such amount should be payable at the rates provided for interest on a judgment pursuant to s 101 of the Civil Procedure Act 2005, such interest to be calculated from 1 June 2010 in respect of the balance unpaid from time to time. His Honour ordered that the Plaintiff's benefits provided by the will and codicil should lapse 60 days after the payment of $300,000 of the legacy. His Honour then went on to make an order with respect to the contents of a residence at Falls Creek to which I will return.

On 12 July 2011, $175,000 was paid to the Plaintiff. Interest had not been paid on the $175,000 while it remained unpaid, but this morning counsel for the Defendant said he had instructions not to oppose an order that the Defendant pay the Plaintiff $27,072.26 and an order, for the avoidance of doubt, that notwithstanding s 101(6), the Defendant pay the Plaintiff interest on the said $27,072.26 pursuant to s 101 of the Civil Procedure Act .

I am asked to depart from the usual order as to costs and make an order that as from 17 May 2011 the Defendant pay the Plaintiff's costs on the indemnity basis from that date. The Plaintiff seeks an order that she be paid costs on the ordinary basis prior to that date.

Reference was made to Rouse v Shepherd (No 2) (1994) 35 NSWLR 277 particularly at 279 where Badgery-Parker J cited with approval what had been said by Sheppard J in Colgate-Palmolive Pty Ltd v Cussons [1993] FCA 536; (1993) 46 FCR 225 at [24]; 233-234, said:

"... it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and…

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

Case: [2011] NSWSC 752
Decision Date: 18 July 2011

CaseChat Overview and Summary

The case of Browne v Browne involved a dispute between the executors of an estate, who were also the children of the deceased, and a beneficiary of the estate. The dispute centred around the distribution of the estate and the executors' failure to pay a legacy owed to the beneficiary. The matter was heard in the Supreme Court of Victoria. The beneficiary, who was also a lay executor, had been involved in selling the deceased's assets to fund the payment of the legacy, but the executors had distributed the estate without paying the balance of the legacy. The beneficiary sought indemnity costs against the executors for their failure to pay the legacy and for the costs associated with pursuing the matter in court.

The court was required to determine whether indemnity costs should be awarded to the beneficiary for the executors' failure to pay the legacy and for the costs incurred in pursuing the matter in court. The court considered whether the executors had acted reasonably in distributing the estate and whether their actions justified the award of indemnity costs. The court also considered the extent to which the beneficiary had contributed to the sale of the assets and the payment of the legacy.

The court found that the executors had not acted reasonably in distributing the estate without paying the balance of the legacy. The court held that the executors' actions justified the award of indemnity costs to the beneficiary. The court noted that the beneficiary had played an active role in selling the assets and that the executors' failure to pay the legacy had caused the beneficiary to incur additional costs in pursuing the matter in court. The court held that the beneficiary was entitled to be compensated for these costs and awarded indemnity costs accordingly.

The court ordered the executors to pay the beneficiary's indemnity costs, including the costs of the proceedings in the Supreme Court. The court held that the executors' failure to pay the legacy and their unreasonable distribution of the estate justified the award of indemnity costs. The court noted that the beneficiary had acted reasonably in pursuing the matter in court and that the executors' actions had caused the beneficiary to incur additional costs. The court held that the executors were liable for these costs and ordered them to pay the beneficiary's indemnity costs in full.

Orders