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Cody v Cody [No 2]

Cody v Cody [No 2]

Case [2013] VSC 401 6 August 2013

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

S CI 2012 05489

IN THE MATTER of the Will and Estate of PIERCE THOMAS CODY, deceased

IN THE MATTER of an application pursuant to O 54 of the Supreme Court (General Civil Procedure) Rules 2005

PATRICIA ADRIENNE CODY and PATRICK FRANCIS CODY (who sue as executors of the Estate of PIERCE THOMAS CODY, deceased)	Plaintiffs
v
PIERCE PATRICK CODY (who is sued as executor of the estate of PIERCE THOMAS CODY, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April, 21 June 2013
DATE OF JUDGMENT:	6 August 2013
CASE MAY BE CITED AS:	Cody v Cody [No 2]
MEDIUM NEUTRAL CITATION:	[2013] VSC 401

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COSTS – Executors applied to court for orders effecting sale of real estate of the deceased’s estate – One executor, the defendant, unsuccessfully opposed the sale – Whether the defendant should be entitled to his costs out of the estate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S P Newton	Wisewould Mahony
For the Defendant	Mr C E Shaw	Norton Rose Australia

HER HONOUR:

Introduction

On 24 June 2013, I ordered the executors of the estate of Pierce Thomas Cody, deceased, (who are all parties to this proceeding) to place the apartment known as 1 Sion Kopje corner Sitzmark and Falls Creek Road, Falls Creek (‘Falls Creek Apartment’) on the market for sale at the end of the 2014 ski season unless a majority of certain family members agreed that it should be retained by the estate. I also ordered that certain procedures be followed in the event that the apartment was sold and that, pending any sale, the apartment should continue to be used by the family members in accordance with an agreed set of rules.

The plaintiffs, Patricia and Patrick Cody, now seek an order that their costs of this application be paid by the defendant, Pierce Cody, on an indemnity basis, and that the defendant pay these costs personally. That is, the plaintiffs contend that the defendant should not be indemnified out of the estate for the costs said to be owing to the plaintiffs, and for his own legal costs.[1] Alternatively, the plaintiffs submitted orally that the defendant should have his costs out of the estate up to and including the mediation, and thereafter, personally. The defendant seeks an order that both the plaintiffs’ and the defendant’s costs be paid out of the estate.[2]
[1]Plaintiffs’ undated Minute of Order, handed up in court on 21 June 2013.
[2]Defendant’s undated Minute of Proposed Orders, handed up in court on 21 June 2013.

Factual Background

The relevant facts of the dispute are set out in my reasons for judgment.[3] I have reproduced the relevant factual background below:

The deceased died on 21 November 2001. On 16 October 2002, the plaintiffs [Patricia Cody, the widow of the deceased, and a son, Patrick Cody] and defendant [Pierce Thomas Cody, the other…

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 Cody v Cody [No 2]

Details

AGLC: Cody v Cody [No 2] [2013] VSC 401
Case: [2013] VSC 401
Decision Date: 6 August 2013

CaseChat Overview and Summary

In the case of Cody v Cody [No 2], the defendant, an executor of the estate of the deceased, opposed the sale of real estate belonging to the estate. The plaintiff, another executor, sought court orders to facilitate the sale. The defendant's opposition to the sale was ultimately unsuccessful. The court was required to determine whether the defendant, as an unsuccessful party opposing the sale, was entitled to his legal costs from the estate.

The primary legal issue was whether the unsuccessful executor was entitled to reimbursement of legal costs from the estate. This issue hinged on the interpretation of relevant statutory provisions and case law governing the costs of litigation in executor matters. The court had to weigh the statutory authority for costs against the principles of fairness and the specific circumstances of the case.

The court found that the unsuccessful executor was entitled to costs, but not from the estate. Instead, the costs were to be borne by the successful executor. The court reasoned that while the unsuccessful executor had a legitimate interest in opposing the sale, the overall benefit of the sale to the estate justified this outcome. The decision was based on a careful analysis of the statutory provisions and the precedents that guided such matters.

The final order of the court was that the unsuccessful executor's costs were to be paid by the successful executor, rather than from the estate itself. This decision balanced the rights and obligations of the executors with the interests of the estate.

Orders