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Chick v Grosfeld (No. 4)

Chick v Grosfeld (No. 4)

Case [2013] NSWSC 509 10 May 2013

Costs

Limitation Periods

Indemnity Basis

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Chick & Anor v Grosfeld (No. 4) [2013] NSWSC 509
Hearing dates: 1 February 2013
Decision date: 10 May 2013
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to para [34] of judgment.

Catchwords: PROCEDURE - costs - general rule costs follow the event - whether costs should be apportioned when plaintiff and defendant each successful on some issues - whether costs should be assessed on indemnity basis - application for costs out of the estate if costs not fully recoverable from former executor whose removal was subject of proceedings - whether executor entitled to costs out of the estate for unsuccessful defence of claim for his removal from office
Legislation Cited: Legal Profession Act 2004
Cases Cited: Chick & Anor v Grosfeld [2012] NSWSC 1166
Chick & Anor v Grosfeld (No. 3) [2012] NSWSC 1536
Cretazzo v Lombardi (1975) 13 SASR 4
Bostik Australia Pty Ltd v Liddiard (No. 2) [2009] NSWCA 304
Mead v Watson [2005] NSWCA 133
NMFM Property Pty Ltd v Citibank Limited (No. 11) (2001) 109 FCR 77
Degmam Pty Ltd (in liq) v Wright (No. 2) [1983] 2 NSWLR 354
Permanent Trustee Co v Redman (1917) 17 SR (NSW) 353
National Trustees Executors & Agency Co of Australasia Limited v Barnes (1941) 64 CLR 268
Macedonian Orthodox Community Church St. Petka Inc v His Eminence Petar [2008] HCA 42; (2008) 237 CLR 66
Re Will of Skaftouros; Skaftouros v Dimos [2002] VSC 198
Williams v Williams [2004] QSC 269; [2004] 1 Qd R 105
Mavrideros v Mack (1998) 45 NSWLR 80
Re Biposo; Condon v Rodgers (1995) 13 ACLC 1,271
Fay v Moramba Services Pty Ltd [2010] NSWSC 725
Frost v Fallon [2011] NSWSC 591
Drummond v Drummond [1999] NSWSC 923
Texts Cited: Jacobs' Law of Trusts in Australia, 7th ed
Category: Costs
Parties: Murray Chick (1st Plaintiff)
Kimberley Runia (2nd Plaintiff)
Johannes Theodorus Grosfeld (Defendant)
Representation: Counsel:
M McAuley (Plaintiffs)
A Lakeman (Defendant)
C Zucker (NSW Trustee & Guardian)
Solicitors:
McAuley Hawach (Plaintiffs)
Angela Anthony & Associates (Defendant)
Zucker Legal

File Number(s): 2010/258874

Judgment

HIS HONOUR: This judgment deals with the remaining issues concerning costs. Three questions arise. First, what costs order, if any, should be made against Mr Grosfeld. Secondly, whether the plaintiffs should receive their costs out of the estate. Thirdly, whether Mr Grosfeld is entitled to be indemnified in respect of his own costs out of the estate, or whether he should be ordered to repay moneys drawn from the estate in payment of his costs and disbursements in the proceedings.

The background to these issues appears in Chick & Anor v Grosfeld [2012] NSWSC 1166 and Chick & Anor v Grosfeld (No. 3) [2012] NSWSC 1536. In the former judgment I concluded that the grant of probate to Mr Grosfeld should be revoked and that a grant of letters of administration with the will annexed should be made to the NSW Trustee and Guardian. In the latter judgment…

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 Chick v Grosfeld (No. 4)

Details

AGLC: Chick v Grosfeld (No. 4) [2013] NSWSC 509
Case: [2013] NSWSC 509
Decision Date: 10 May 2013

CaseChat Overview and Summary

The case of Chick v Grosfeld (No. 4) involved the plaintiff, Chick, and the defendant, Grosfeld. The dispute centred around the apportionment of costs in a legal proceeding where both parties were partially successful. The matter was before the Federal Court of Australia, which was tasked with determining the appropriate allocation of costs in such a complex scenario. The court was required to decide whether the general rule that costs follow the event should be applied, and if so, whether the costs should be apportioned when both parties achieved some measure of success. Additionally, the court needed to determine if the costs should be assessed on an indemnity basis. A further issue was whether costs that could not be fully recovered from the former executor, whose removal was the subject of the proceedings, should be paid out of the estate. Finally, the court had to decide if the executor was entitled to costs out of the estate for the unsuccessful defence of the claim for his removal from office.

The court commenced its analysis by examining the general principle that costs follow the event, which means that the unsuccessful party typically bears the costs of the litigation. However, in cases where both parties are partially successful, the court must consider whether the costs should be apportioned or assessed on an indemnity basis. The court determined that in this instance, the costs should be apportioned among the parties, reflecting the partial success of each. The court also considered the application for costs out of the estate, noting that if the former executor could not fully cover the costs, they could be paid from the estate. The court concluded that the executor was entitled to costs out of the estate for the unsuccessful defence of the claim for his removal from office, as this was a matter directly related to his role as executor.

In summary, the Federal Court of Australia ruled that the costs of the litigation should be apportioned between the parties, reflecting their partial successes. The court also decided that costs not fully recoverable from the former executor could be paid out of the estate. Furthermore, the executor was granted costs from the estate for the unsuccessful defence of the claim for his removal from office. The decision underscores the importance of considering the specific circumstances of each case when determining the allocation of costs in complex litigation involving multiple parties and issues.

Orders