Carrington v Wallace (No 2) - [2020] NSWSC 5

Supreme Court

New South Wales

Medium Neutral Citation: Carrington v Wallace (No 2) [2020] NSWSC 5
Hearing dates: On the papers
Decision date: 13 January 2020
Jurisdiction: Equity
Before: Robb J
Decision:
The Court notes that the proceedings have been stood over to 5 February 2020 where the outstanding issue of the costs of the proceedings will be further considered.

Catchwords: COSTS – consequential costs orders – where a number of issues not determined in the principal judgment – whether it is appropriate for the Court to make a specified gross sum costs order – further consideration by the parties required
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Cases Cited: Carrington v Wallace [2019] NSWSC 1301
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Category: Costs
Parties: Mischa Grace Carrington (first plaintiff/first cross-defendant)
Dean Edward Carrington (second plaintiff/second cross-defendant)
Matthew Gary Wallace (first defendant/first cross-claimant)
Ashley Joseph Carrington (second defendant/second cross-claimant)
Representation: Counsel:
S Bell (plaintiffs/cross-defendants)
J D Cook (defendants/cross-claimants)
Solicitors:
SR Law (plaintiffs/cross-defendants)
Minter Ellison (defendants/cross-claimants)

File Number(s): 2018/238530
Publication restriction: Nil

Judgment

The primary judgment in this matter was delivered on 27 September 2019: Carrington v Wallace [2019] NSWSC 1301.
The only issue that was decided on the merits was a dispute between the parties concerning the proper construction of the will dated 18 April 2015 of the late Edward Joseph Carrington.
At par 115 of the primary judgment, I set out orders that I proposed to make subject to such comments as the parties provided to the Court in response to an invitation that I made in that regard.
The Court made orders on 28 November 2019 after hearing from the parties. Orders 1 to 4 consisted of declarations and orders that determined the proper construction of the will and how the will, as so construed, was required to be performed by the defendants, who are the executors of the will.
There were a number of subsidiary disputes between the parties concerning the proper administration of the deceased’s estate. During the course of the hearing, various parties indicated positions that appeared to involve reasonable ways to resolve the disputes in a manner that would obviate the need for judicial determination in the course of an administration suit. Orders 6 to 11 were made without any determination by the Court of the merits of those disputes on the basis of the agreed position of the parties and had the effect of resolving those disputes. For completeness, I should mention that there was no order 5, as the parties agreed that the order 5 that I proposed in the primary judgment should not be made.
At the time the primary judgment was delivered, it was unclear whether the plaintiffs would decide to pursue additional complaints that they had concerning the manner in which the defendants had administered the estate of the deceased. Proposed orders 12 and 13 required the plaintiffs to inform the defendants whether…

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) [2020] NSWSC 5
Case: [2020] NSWSC 5
Decision Date: 13 January 2020

CaseChat Overview and Summary

The matter of Carrington v Wallace (No 2) before the Federal Court involved the appellant, Mr. Carrington, and the respondent, Mr. Wallace. The dispute centred around a consequential costs order in relation to a prior litigation between the parties, which was settled by agreement. The case required the court to determine whether it was appropriate to make a specified gross sum costs order when a number of issues were not determined in the principal judgment, and if further consideration by the parties was necessary.

The primary legal issue before the court was whether, in the circumstances of this case, it was appropriate for the court to make a specified gross sum costs order. The court was required to consider the appropriateness of such an order, particularly when a number of issues were not determined in the principal judgment. The court also had to consider whether it was necessary for the parties to further consider the matter of costs.

In addressing the issue, the court acknowledged that in some cases, a specified gross sum costs order may be appropriate, but it must consider the specific circumstances of the case. The court found that in this case, given that a number of issues were not determined in the principal judgment, it was not appropriate to make a specified gross sum costs order without further consideration by the parties. The court held that the parties should be given an opportunity to further consider the matter of costs, taking into account the unresolved issues and the overall fairness of the costs order.

The court did not make a final costs order in the judgment. Instead, it directed the parties to further consider the matter of costs, taking into account the unresolved issues and the overall fairness of the costs order. The court's decision underscored the importance of considering the specific circumstances of each case when determining consequential costs orders, particularly when multiple issues remain unresolved.

Orders