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Carrington v Wallace (No 2)

Carrington v Wallace (No 2)

Case [2022] NSWSC 1306 28 September 2022

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Supreme Court

New South Wales

Medium Neutral Citation: Carrington v Wallace (No 2) [2022] NSWSC 1306
Hearing dates: On the papers
Date of orders: 28 September 2022
Decision date: 28 September 2022
Jurisdiction: Equity
Before: Ward P
Decision:
See at [99]

Catchwords:
COSTS — Payable out of the deceased’s estate — Liability for costs where various claims were abandoned

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 98
Trustee Act 1925 (NSW), ss 81, 85

Cases Cited:
Aequitas Ltd v AEFC Leasing Pty Ltd [2001] NSWSC 14
Bassett v Bassett [2021] NSWCA 320
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Black Uhlans Inc v NSW Crime Commission (2002) 12 BPR 22,421; [2002] NSWSC 1060
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Buffrey v Buffrey (2006) 12 BPR 23,619; [2006] NSWSC 1349
Carrington v Wallace (No 2) [2020] NSWSC 5
Carrington v Wallace [2019] NSWSC 1301
Carrington v Wallace [2022] NSWSC 1078
Currie v Hamilton [1984] 1 NSWLR 687
Dinsdale v Arthur (2006) 12 BPR 23,509; [2006] NSWSC 809
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Freelancer International Pty Ltd v Matthew O’Kane [2019] NSWSC 159
Murrumbidgee Irrigation Ltd v M & H Acar Pty Ltd [2019] NSWSC 807
Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Richardson v Richardson [2021] NSWSC 353
Ryan v Dries (2003) 10 BPR 19,497; [2002] NSWCA 3
Spellson v George (1987) 11 NSWLR 300
TOMRA Collection Pty Ltd v Minto [2021] NSWSC 1323
Warton v Yeo (2015) 15 ASTLR 462; [2015] NSWCA 115

Texts Cited:
JD Heydon and MA Leeming, Jacobs’ Law of Trusts in Australia (8th ed, Lexis Nexis, 2016)

Category: Costs
Parties: Mischa Grace Carrington (First Plaintiff)
Dean Edward Carrington (Second Plaintiff)
Matthew Gary Wallace (First Defendant)
Ashley Joseph Carrington (Second Defendant)
Representation:
Counsel:
A Cheshire SC with H Morrison (Plaintiffs)
A Harding SC with J Cook (Defendants)
Solicitors:
Glass Goodwin (Plaintiffs)
Minter Ellison (Defendants)

File Number(s): 2018/00238530
Publication restriction: Nil

Judgment

HER HONOUR: On 16 August 2022, I published reasons for judgment in a dispute in relation to the administration of the estate of the late Edward Carrington (the deceased) (see Carrington v Wallace [2022] NSWSC 1078). By the time the proceeding came before me for hearing (there having been an earlier hearing on the question of construction of the deceased’s Will before Robb J), the complaint by the plaintiffs (Mischa and Dean, two of the three children of the deceased) was that the sale by the defendants (Ashley, the remaining child of the deceased, and Matthew, Mischa’s ex-husband), as executors, of…

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 Carrington v Wallace (No 2)

Details

AGLC: Carrington v Wallace (No 2) [2022] NSWSC 1306
Case: [2022] NSWSC 1306
Decision Date: 28 September 2022

CaseChat Overview and Summary

The case of Carrington v Wallace (No 2) involved a dispute regarding costs payable out of a deceased's estate. The parties were the plaintiff, Carrington, and the defendant, Wallace, who was the executor of the deceased's estate. The dispute arose from various claims that were made against the estate but were later abandoned. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the plaintiff, who had abandoned certain claims against the estate, was entitled to have his costs paid out of the deceased's estate. The court had to consider the relevant principles of equity and the statutory provisions governing the payment of costs in estate matters. Specifically, the court needed to determine whether the abandonment of certain claims affected the plaintiff's entitlement to costs and whether the executor of the estate was liable to pay those costs.

The court held that the plaintiff was not entitled to have his costs paid out of the deceased's estate as he had abandoned certain claims. The court reasoned that when a plaintiff abandons a claim, they are generally not entitled to costs unless there are exceptional circumstances. The court found that there were no such exceptional circumstances in this case. The court further noted that the executor of the estate was not liable to pay the plaintiff's costs as the plaintiff had not succeeded in any of the claims made against the estate. The court concluded that the plaintiff's costs should be borne by the plaintiff themselves.

In light of the above, the court ordered that the plaintiff was not entitled to have his costs paid out of the deceased's estate. The executor of the estate was not liable to pay any of the plaintiff's costs. The court further ordered that the plaintiff bear his own costs of the proceedings.

Orders