Coshott v Spencer

[2022] NSWSC 1175

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Coshott v Spencer [2022] NSWSC 1175

Hearing dates:

On the papers

Date of orders:

02 September 2022

Decision date:

02 September 2022

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Note that the plaintiff has died.

(2)   Note that in the absence of any representative of the deceased plaintiff, or the Executors or Administrators of his Estate being appointed, it is inappropriate to deal with the defendant’s application.

(3)   Stand the proceedings over to 30 June 2023.

(4)   Grant the parties liberty to restore the matter to the list if an appropriate party is identified.

Catchwords:

COSTS — Application for gross sum costs order — Where the respondent has died and his estate has no appointed representative — Inappropriate to deal with the application — Proceedings stood over and liberty to apply granted

Legislation Cited:

NSW Trustee and Guardian Act 2009

Probate and Administration Act 1898 s 61

Uniform Civil Procedure Rules 2005 rr 6.30, 7.10

Cases Cited:

Coshott v Spencer [2022] NSWSC 824

Texts Cited:

Not applicable

Category:

Procedural rulings

Parties:

Ronald Coshott (P)
Keith Spencer (D)

Representation:

Solicitors:
Arch Law (Australia) Pty Ltd (D)

File Number(s):

2020/00308239

Publication restriction:

Not applicable

Judgment

1. On 24 June 2022, for the reasons which I then expressed, I dismissed an appeal brought by Mr Ronald Coshott from a decision of the Local Court made on 2 October 2020. I ordered that the plaintiff pay the defendant’s costs. I also made orders enabling either party to seek any different costs order: Coshott v Spencer [2022] NSWSC 824.

2. In accordance with those orders, on 15 July 2022, the defendant, Mr Keith Spencer, made application for a gross sum costs order in the sum of $19,217.00 which included costs incurred in making the application for the order.

3. The application was accompanied by an affidavit and written submissions.

4. No submissions were received from Mr Coshott in response to that application.

5. On 18 July 2022, a supplementary submission was made by Mr Spencer which informed the Court that the plaintiff, Mr Coshott had, to the best of Mr Spencer’s knowledge and belief, died. Mr Spencer informed the Court that he had made searches on-line for any Notice of Intention to Apply for Probate or for Administration. No such Notice has been received. It is unclear whether Mr Coshott has left a Will or has died intestate.

6. In the absence of the grant of any probate or administration, the provisions of s 61 of the Probate and Administration Act 1898 have the effect that the real and personal estate of the late Mr Coshott is deemed to be vested in the NSW Trustee being the NSW Trustee and Guardian constituted under the NSW Trustee and Guardian Act 2009.

7. Rule 6.30 of the Uniform Civil Procedure Rules 2005 (“UCPR”) provides that proceedings do not abate as a result of a party’s death if a cause of action in the proceedings survives.

8. Although I have not had the benefit of submissions on behalf of Mr Coshott, or anybody connected with his Estate, I am of the view, subject to any such submissions as may be made in the future, that Mr Spencer’s entitlements under an order for costs would survive the death of Mr Coshott, and he would be entitled to claim the benefit of that order against the Estate of the late Mr Coshott.

9. However, no person has as yet been identified as being appropriate to be joined pursuant to r 6.32 or else pursuant to r 7.10 of the UCPR.

10. In those circumstances, whilst I recognise the apparent merit of the order sought by Mr Spencer and, subject to any further submissions, would be inclined to make a gross sum costs order in the sum of $13,500 for the solicitor’s costs and $3,795 for counsel’s fees, any order ought not be made given that the plaintiff has died and his Estate is unrepresented.

11. If that circumstance is rectified, then the matter can be relisted before me.

12. The only appropriate orders for the moment are:

1. Note that the plaintiff has died.

2. Note that in the absence of any representative of the deceased plaintiff, or the Executors or Administrators of his Estate being appointed, it is inappropriate to deal with the defendant’s application.

3. Stand the proceedings over to 30 June 2023.

4. Grant the parties liberty to restore the matter to the list if an appropriate party is identified.

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Amendments

06 September 2022 - Incorrect return listing date.

06 September 2022 - Further listing amendment.