Christine Mary Morice v Neil James Murley
[2014] NSWSC 1690
•27 November 2014
Supreme Court
New South Wales
Medium Neutral Citation: Christine Mary Morice v Neil James Murley [2014] NSWSC 1690 Hearing dates: 27 November 2014 Decision date: 27 November 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Defendant to pay plaintiff's costs of the proceedings
Catchwords: COSTS - Proceedings for removal of one joint executor/trustee resolved on morning of hearing - No issue of principle Category: Costs Parties: Christine Mary Morice (Plaintiff)
Neil James Murley (Defendant)Representation: Counsel:
Ms E. Peden (Plaintiff)
Solicitors: Tonkin Drysdale Partners (Plaintiff)
File Number(s): 2014/126217 Publication restriction: No
EX TEMPORE Judgment
HIS HONOUR: The plaintiff and the defendant are respectively sister and brother and executor trustees of the estate of their late mother, Thelma Mary Jones.
The estate has been fully administered, with the exception of the sale of Mrs Jones' home at Blackwall.
By a summons filed on 28 April 2014, the plaintiff sought a number of orders directed to removing the defendant as an executor or trustee, so as to enable the Blackwall property to be sold.
Prior to filing the summons, there had been more than twelve months discussion and correspondence, including from the plaintiff's solicitor to the defendant, attempting to achieve some resolution of the impasse between them in relation to the sale of the property. That impasse turned upon the defendant's stated desire to purchase the property without the need for it to go to public sale.
It is unnecessary for me to rehearse the details of the correspondence. I am satisfied that the plaintiff gave the defendant every proper opportunity to come to a resolution of the impasse before the proceedings were filed. The plaintiff was, in the circumstances, entirely justified in commencing the proceedings.
Irrespective of the precise form of relief which the Court would ultimately grant to give effect to the plaintiff's desire to sell the Blackwall property, nothing has been drawn to my attention which would suggest that the defendant had any proper basis to resist relief of the kind sought in the summons.
This morning, when the matter came on for hearing before me, the defendant indicated that he was prepared to consent to orders removing him as trustee, the view being taken by the plaintiff (to which the Court was prepared to accede) that the estate largely being administered, the appropriate form of relief was in relation to the defendant's capacity as trustee, rather than in his capacity as a joint executor.
I have made the orders sought by consent in relation to the removal of the defendant as a trustee and the vesting of the Blackwall property in the plaintiff as sole trustee to enable her to proceed to sell it. Ultimately, the plaintiff and the defendant are the sole remaining beneficiaries and whatever comes out of the sale will be divided between them after the proper costs of the estate have been taken into account.
The plaintiff seeks her costs of the proceedings on the ordinary basis. The defendant has resisted that, on the basis of his stated belief, as he put it, that everything would be divided at the end of the day. I do not accept that as being the correct approach in this case. The plaintiff has taken every appropriate step to give the defendant an opportunity to avoid the necessity for this litigation. The defendant declined to take that opportunity. The plaintiff has been put to the expense of instructing solicitors and counsel up to and including the costs of today's hearing.
While costs are in the discretion of the Court, the usual rule is that costs follow the event. This is not a case for the application of dicta to the effect that where proceedings are resolved before hearing and there is no agreement as to costs, the usual consequence is for there to be no order as to costs so that costs lie where they fall. The reason those dicta are inapplicable is that it should always have been obvious to the defendant that his answer to the proceedings, if there ever was one, was hopeless.
In the circumstances of this case the appropriate exercise of the Court's discretion is that costs should follow the event. The defendant has capitulated on the morning of the hearing to the relief which was sought and which would inevitably have been granted.
I will order that the defendant pay the plaintiff's costs of the proceedings, to be paid, as agreed or assessed, out of the defendant's share of his late mother's estate.
Decision last updated: 27 November 2014
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