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

1. 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.

2. I have given two previous judgments dealing with the wills and estate of two brothers, Gavin John Cobcroft (John) and Brien Cobcroft (Brien).

3. 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.

4. 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.

5. 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.

6. 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 solicitor is suggesting Michelle Johnson’.

7. Michelle Anne Johnson, solicitor, in private practice on her own account and experienced in probate and estate matters was then contacted. She has sworn an affidavit as to the circumstances of her agreeing to be tutor for the grandchildren. Her affidavit deals with various conversations she had with Robert Gorczyca, a solicitor in the office of the plaintiff’s solicitors in which she agreed to be the tutor. I am told that Mr Gorczyca does not entirely agree with Ms Johnson’s versions of the conversations, but it was not possible to have a hearing to determine which was the more credible and indeed, counsel and I at the recent hearing decided that that would not be necessary.

8. Under the usual provisions for appointment of a tutor, a person applies to the court for the appointment of a tutor. The consequence is that a tutor is appointed who has a personal liability for the costs and expenses of the disabled person for whom she is the tutor, subject to a right of indemnity: see eg Murray v Kirkpatrick (1940) 57 WN (NSW) 162. By her cross-claim Ms Johnson seeks a declaration that ‘as the tutor for the 10th – 15th defendants was made on the application of the plaintiff as executor of the estate of the late Gavin John Baxter Cobcroft, he is obliged to pay her fees and indemnify her.

9. The objection was made by the executor, that is the plaintiff in these proceedings, that he did not make the application to have Ms Johnson appointed, rather the court made the order sua sponte.

10. Having looked at the transcript again, it would seem to me that it may well be that the court made the appointment of the tutor technically on its own motion, within Part 7 Rule 18 of the Uniform Civil Procedure Rules (NSW). However it was motivated to do so by the submissions of Mr Whittle SC, then counsel for the plaintiff, that that was necessary. All that really happened if the court did make a sua sponte appointment was that the process of appointment was short-circuited.

11. The authorities seem to me to say that such an attitude is sufficient to bring the plaintiff into the area of a person who has made the application to appoint the tutor.

12. In Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200, the Deputy Commissioner of Taxation was suing a minor for tax. The plaintiff needed to appoint a guardian ad litem in order to sue the infant. The Commissioner asked the court to appoint one of its officers to act as a tutor. The court did so and then the question was how far the Commissioner was liable to pay the costs and expenses of the guardian ad litem. Hodgson J held at page 205 that the Commissioner was so liable. Even though the court had made the appointment, it was his moving of the court that had brought that about.

13. White J took a similar approach in Guler v NSW Trustee & Guardian [2012] NSWSC 1369. His Honour said at paragraph 6:

It was in the interests of the administration of the estate for the NSW Trustee and Guardian to have consented to act as the second defendant’s tutor. It has incurred legal costs in acting for the second defendant leading to the second defendant consenting to the orders sought by the plaintiffs. I see no reason why the NSW Trustee & Guardian should be out of pocket. However, the costs of the NSW Trustee & Guardian in acting as tutor for the second defendant should in the first instance be borne by the second defendant pursuant to the usual rule that the incapacitated party is liable to indemnify his or her tutor in respect of those costs. To the extent the NSW Trustee & Guardian is unable to recover such costs from the second defendant, then it should be entitled to be indemnified out of the estate. If it is indemnified out of the deceased’s estate, the second defendant will be liable to indemnify the estate. That would only be of practical significance if he subsequently becomes entitled to other assets.

14. This learning flows from the English decisions of Eady v Elston [1901] 2 KB 460 and Re PC [1961] Ch 312.

15. In the instant case, it was the plaintiff, that is the executor of John Cobcroft’s estate, who needed to have the tutor appointed. It was never contemplated by anybody that the infant grandchildren would be responsible for the tutor’s costs and on the authorities that I have cited, it is the plaintiff, that is Mr Bruce as executor of John’s estate, who must indemnify Ms Johnson. He in turn of course, is to be indemnified out of the estate.

16. I must confess that I was disturbed by this argument because whatever the exact circumstances of which Ms Johnson took the appointment, it was to satisfy a request made by the court to accommodate Mr Bruce’s counsel’s submissions. Ms Johnson agreed and not only did she do her duties as one would have expected, she also gave up part of her January holiday in order to attend a mediation.

17. All counsel involved recognise that Ms Johnson must be paid. That must be so. The whole integrity of the court system of having solicitors act as tutors or guardians in these will case where there is a large estate, depends on the solicitor who volunteers to act to fulfil a necessary role being properly indemnified as to his or her costs and expenses.

18. I understand that currently an asset in John Cobcroft’s estate being land in the sole name of John Cobcroft, is being realised and that this will bring about funds which can pay Ms Johnson’s account. If this does not happen in the near future, then the executor would be wise, even to borrow money, to enable this particular liability of the estate and perhaps the liability of the executor personally, to be discharged forthwith.

19. The plaintiff must pay the cross-claimant’s costs of the third cross-claim though it is entitled to be indemnified out of the estate of the late John Cobcroft.

20. An identical cross-claim was filed in the estate of Brien. It is doubtful whether the grandchildren were interested in Brien’s estate. It is simpler merely to dismiss the third cross-claim in case 2013/373085 with no order as to costs.

21. In this matter, I make the orders sought in the cross- claim. Liberty to apply.

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Amendments

25 September 2015 - Paragraph 15 - typographical error amended

Decision last updated: 25 September 2015