Bruce v Cobcroft (No 3) - [2015] NSWSC 1414

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bruce v Cobcroft (No 3) [2015] NSWSC 1414
Hearing dates: 27 August 2015
Date of orders: 25 September 2015
Decision date: 25 September 2015
Jurisdiction: Equity
Before: Young AJA
Decision:
Tutor to be indemnified by executor of relevant estate

Catchwords: COURTS PRACTICE – tutor for minors – appointed after suggestion to court by counsel for executor that appointment necessary – tutor entitled to indemnity from executor
Legislation Cited: Uniform Civil Procedure Rules (NSW)
Cases Cited: Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200
Eady v Elston [1901] 2 KB 460
Guler v NSW Trustee & Guardian [2012] NSWSC 1369
Murray v Kirkpatrick (1940) 57 WN (NSW) 162
Re PC [1961] Ch 312
Category: Principal judgment
Parties: Robert Ritchie Bruce – plaintiff
Nicklas William Baxter Cobcroft, David Gavin Baxter Cobcroft, Robert Charley, Helen Foote, Carole Byrnes, Peter Brown, Jennifer Menzies Cobcroft, Parraweena Pty Limited, Parraweena Highlands Pty Ltd, Daisy Evelyn Cobcroft, Jasper Nicklas William Cobcroft, Hermione Fiona Cobcroft, Benjamin William Baxter Cobcroft, Amanda Jane Cadwallader Cobcroft, Teya Ellie Cobcroft – defendants 1 – 15
Representation: Counsel:
Mr M Green – plaintiff
Mr MS Wilmott SC – defendants 1 and 2
Mr R Wilson SC – defendant 7
Mr C Harris SC – for Michelle Anne Johnson Tutor for defendants 10 to 15
Solicitors:
Bruce & Stewart – plaintiff
Foulsham & Geddes PL – defendants 1and 2
L Rundle & Co – defendant 7
Gordon Salier, Solicitor – for tutor for defendants 10 to 15

File Number(s): 2013/373067

Judgment

These reasons deal solely with the claim made for indemnity for her costs and expenses by Ms Michelle Anne Johnson solicitor, as tutor for the infant grandchildren involved in this case which claim was brought by the third cross claim filed in court on 27 August 2015.
I have given two previous judgments dealing with the wills and estate of two brothers, Gavin John Cobcroft (John) and Brien Cobcroft (Brien).
The matters that I have already dealt with and one that I am still to deal with involve complicated questions over the wills of those brothers which concern large parcels of land.
In the estate of John, there was the possibility that infant grandchildren might have a claim or would otherwise be affected by the decision in the proceedings.
On 22 May 2014, I held a directions hearing. On that occasion Mr J B Whittle SC appeared with Mr B J Burke for the plaintiffs and Mr M Willmott SC appeared for the first and second defendants.
Mr Whittle raised the matter about the representation of the grandchildren. I asked Mr Whittle at page 2 of the transcript: ‘who should be appointed to represent the grandchildren?’ Mr Whittle replied that a completely independent person should be appointed such as a senior well experienced practitioner in this area of the law. After discussion, I said: ‘are we looking for a probate solicitor?’ Various names were then discussed and Mr Whittle said: ‘my…

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 Bruce v Cobcroft (No 3)

Details

AGLC: Bruce v Cobcroft (No 3) [2015] NSWSC 1414
Case: [2015] NSWSC 1414
Decision Date: 25 September 2015

CaseChat Overview and Summary

The case of Bruce v Cobcroft (No 3) involved the appointment of a tutor for minors, with the court being asked to determine whether the tutor was entitled to an indemnity from the executor of the estate. The executor had suggested to the court that the appointment of a tutor was necessary. The court was required to consider the legal principles surrounding the appointment of tutors and the entitlement to indemnity, particularly in the context of the executor's role and responsibilities.

The legal issues before the court revolved around the interpretation of the relevant statutory provisions concerning the appointment of tutors for minors and the associated costs. Specifically, the court had to determine whether the executor's suggestion that the appointment of a tutor was necessary justified the granting of an indemnity to the tutor, and if so, the extent of that indemnity. The court also needed to consider the statutory framework and the equitable principles that might apply in such circumstances.

The court held that the executor's suggestion to the court regarding the necessity of appointing a tutor for the minors did indeed justify the appointment. Furthermore, the court found that the executor's role in suggesting this appointment was significant enough to warrant the granting of an indemnity to the tutor. The court ruled that the executor was liable to indemnify the tutor for all costs reasonably incurred in connection with the tutor's role, including fees and disbursements. The decision emphasised the importance of the executor's role in ensuring the welfare of the minors and the equitable considerations that underpin the relationship between the executor and the tutor.

The court made orders that the executor was to indemnify the tutor for all costs reasonably incurred in the performance of the tutor's duties. This included the tutor's fees and any necessary disbursements. The court's decision provided clarity on the extent of the executor's responsibility in the context of appointing a tutor and the associated financial obligations.

Orders