Carter v Brine (No 2)

Case [2016] SASC 36

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

CARTER v BRINE (No 2)

[2016] SASC 36

Judgment of The Honourable Justice Blue

16 March 2016

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ISSUES

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OUT OF A FUND - WHEN COSTS ALLOWED OUT OF FUND

Costs in action claiming equitable interests in properties and additional provision out of estate.

Reasons for judgment previously delivered upholding equitable claims in respect of 446 Gilles Street Adelaide and the Royal Bank of Scotland bank account and otherwise dismissing the action. Judgment entered for the plaintiff for $571,830.

The plaintiff and the beneficiary defendants each seek an order that the other party pay their costs of action subject to a reduction on account of claims or issues on which they did not succeed. The executor defendants seek an order that their costs on an indemnity basis be paid out of the estate. 

Towards the end of the trial, the plaintiff made a Calderbank offer to the defendants. The plaintiff seeks an order for payment of her costs after the expiry of the offer on a solicitor and client basis.

Held:

1.      In broad terms, the plaintiff should notionally recover her costs in respect of 446 Gilles Street and most of her costs in respect of the RBS bank account and the beneficiary defendants should notionally recover their costs in respect of the English apartment and 440 Gilles Street (at [16]-[19]).

2.      Subject to issues of alleged misconduct and the offer, on an overall assessment each party should bear their own costs (at [20] - [27]).

3.      The plaintiff’s conduct in relation to the litigation does not amount to reason to make a different costs order (at [36]).

4.      The rejection by the beneficiary defendants of the plaintiff's offer does not amount to reason to make a different costs order (at [53]).

5.      The costs of the executors on an indemnity basis should be borne by the estate (at [56]).

6.      There should be no order as to the costs of action as between the plaintiff and the beneficiary defendants (at [57]).

Inheritance (Family Provision) Act 1972 (SA) 7, referred to.
Oshlack v Richmond River Council (1998) 193 CLR 72, discussed.
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73; Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873; Australian Trade Commission v Disktravel [2000] FCA 62; Belongil Progress Association Inc v Byron Shire Council [2000] NSWLEC 118; Bostock v Ramsey Union District Council [1900] 2 QB 616; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107; Chappel v Hart (1998) 195 CLR 232; Copping v ANZ McCaughan Ltd (1995) 63 SASR 523; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; F King & Co v Gillard & Co [1905]…

Continue reading Carter v Brine (No 2)

Sign in free to access the full text

Details
AGLC
Carter v Brine (No 2) [2016] SASC 36
Case
[2016] SASC 36
Decision Date

CaseChat Overview and Summary

The case of Carter v Brine (No 2) was heard by the Supreme Court of New South Wales. The dispute between the parties involved the costs of the executors of an estate, as well as the general rule of costs following the event. The executors sought to have their costs borne by a fund, while the opposing party argued that the costs should be paid from the estate.

The court was required to determine whether the executors' costs should be borne by the estate, or if they should be paid out of a fund. Additionally, the court needed to decide if the costs of action were to be borne by the parties or the estate.

The court found that the costs of the executors on an indemnity basis should be borne by the estate. The court acknowledged that this would entail that the Brines would bear these costs, but this was offset by the fact that Ms Carter would bear the court filing and trial fees. The court held that there should be no order as to the costs of action as between Ms Carter and the Brines, as the costs of action of the executors should be paid by the estate on an indemnity basis. The court reasoned that the costs of issues should not be allowed out of a fund unless there are exceptional circumstances.

The court concluded that the executors' costs should be paid by the estate on an indemnity basis. This decision reflects the principle that costs should generally follow the event, and that the costs of issues should not be allowed out of a fund unless there are exceptional circumstances.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The costs of the executors on an indemnity basis should be borne by the estate. While this entails that they will be borne by the Brines, this is offset by the fact that Ms Carter will bear the court filing and trial fees.Conclusion There should be no order as to the costs of action as between Ms Carter and the Brines. The costs of action of the executors should be paid by the estate on an indemnity basis.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.