Curran v Duncan as Executor of the Will of Jean Frances Hogg (Dec)
[2006] WASC 9 (S)
CURRAN -v- DUNCAN as Executor of the Will of JEAN FRANCES HOGG (DEC) & ORS [2006] WASC 9 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 9 (S) | |
| Case No: | CIV:1349/2004 | 2 - 3 NOVEMBER 2005 | |
| Coram: | EM HEENAN J | 27/01/06 | |
| 27/01/06 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Costs to be paid out of estate | ||
| B | |||
| PDF Version |
| Parties: | JUDITH JEAN CURRAN ROSS NEWHAM DUNCAN as Executor of the Will of JEAN FRANCES HOGG (DEC) ROSS NEWHAM DUNCAN SUSAN SHERYL DUNCAN Beneficiary of the Estate of JEAN FRANCIS HOGG (DEC) JACQUELINE ELIZABETH HOGG ROSS NEWHAM DUNCAN as Executor of the Will of JEAN FRANCES HOGG (DEC) ROSS NEWHAM DUNCAN SUSAN SHERYL DUNCAN Beneficiary of the Estate of JEAN FRANCES HOGG (DEC) |
Catchwords: | Inheritance (Family and Dependants Provision) Act 1972 Costs Successful applicants Costs out of estate |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972 (WA) |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 27 JANUARY 2006 FILE NO/S : CIV 1349 of 2004 MATTER : Section 6 of the Inheritance (Family and Dependants Provision) Act 1972 BETWEEN : JUDITH JEAN CURRAN
- Plaintiff
AND
ROSS NEWHAM DUNCAN as Executor of the Will of JEAN FRANCES HOGG (DEC)
First Defendant
ROSS NEWHAM DUNCAN
Second Defendant
SUSAN SHERYL DUNCAN Beneficiary of the Estate of JEAN FRANCIS HOGG (DEC)
Third Defendant
(Page 2)
BETWEEN : JACQUELINE ELIZABETH HOGG
- Plaintiff
AND
ROSS NEWHAM DUNCAN as Executor of the Will of JEAN FRANCES HOGG (DEC)
First Defendant
ROSS NEWHAM DUNCAN
Second Defendant
SUSAN SHERYL DUNCAN Beneficiary of the Estate of JEAN FRANCES HOGG (DEC)
Third Defendant
Catchwords:
Inheritance (Family and Dependants Provision) Act 1972 - Costs - Successful applicants - Costs out of estate
Legislation:
Inheritance (Family and Dependants Provision) Act 1972 (WA)
Result:
Costs to be paid out of estate
Category: B
(Page 3)
Representation:
CIV 1349 of 2004
Counsel:
Plaintiff : Mr M D Cuerden
First Defendant : Mr D K Barker
Second Defendant : Mr D K Barker
Third Defendant : Mr D K Barker
Solicitors:
Plaintiff : Nicholson Clement
First Defendant : Chalmers and Partners
Second Defendant : Chalmers and Partners
Third Defendant : Chalmers and Partners
CIV 1543 of 2004
Counsel:
Plaintiff : Mr T R Stephenson
First Defendant : Mr D K Barker
Second Defendant : Mr D K Barker
Third Defendant : Mr D K Barker
Solicitors:
Plaintiff : Cameron Eastwood
First Defendant : Chalmers and Partners
Second Defendant : Chalmers and Partners
Third Defendant : Chalmers and Partners
Nil
Case(s) also cited:
Nil
(Page 4)
1 EM HEENAN J: The orders which I make in these proceedings to give effect to the conclusions set out in my reasons for decision are these: Rather than the provision contained in the will of Jean Frances Hogg admitted to probate, there will be an order that the whole of the estate of the deceased after the payment of all just debts, funeral and testamentary expenses and any other duties or charges upon the estate shall be held by the executor in trust for distribution as follows: four equal one-tenth shares be payable to Susan Sheryl Duncan and Ross Newham Duncan as tenants in common in equal shares; (b) three equal one-tenth shares be payable to Judith Jean Curran; and (c) three equal one-tenth shares be payable to Jacqueline Elizabeth Hogg. Next, in accordance with s 14(4) of the Inheritance (Family and Dependants Provision) Act 1972, I order and direct that the grant of the probate of the will of the deceased be produced to the registry for the purposes of being endorsed with a certified copy of the judgment and orders in these proceedings.
2 It is necessary now that I deal with the question of costs upon which extensive submissions have been heard this morning.
3 In this respect I must recognise that these two applications had been listed for hearing before a Commissioner of this Court in July 2005 but were adjourned on the first day listed for the trial after submissions were made by the parties. Odes C on that occasion ordered that the costs of the adjournment, including costs thrown away, be paid by the second and third defendants, Mrs and Mr Duncan respectively. The reason for that adjournment was related to, but not entirely, issues arising from disputes over the valuation of the principal asset of the estate of the deceased and also controversy about the value of the assets of one of the applicants, Ms Hogg. The order for costs which I must now make therefore will be supplementary to the order relating to that earlier stage of the proceedings.
4 I approach this matter on the basis that, generally speaking, successful parties should have their costs out of the estate and that the executor and other parties should also have their costs out of the estate to the extent that, in the case of the executor, the costs are incurred in performing the limited role of the executor and in relation to other parties, to the extent that they have sought to preserve an interest which is consistent with their entitlement under the will.
5 In the present case the applicant, Mrs Curran, applies for an order for her costs to be paid out of the estate with no special orders. The applicant, Mrs Hogg, applies for an order that her costs be paid out of the estate but with special orders relating to certain categories of costs which, on her
(Page 5)
- counsel's submissions, were incurred as a result of unproductive opposition by the defendants to estimates of value which she had put forward. In relation to those components of the costs, counsel for Ms Hogg in effect submits that they should not be borne by the estate generally but should be paid by the defendants who were responsible for them being incurred - in the end unnecessarily.
6 The position in relation to the defendants is that the executor Mr Ross Duncan asks for his costs as an executor to be paid out of the estate and there is no controversy about this. No application is made for any separate order for costs to be awarded to the second and third defendants Mr and Mrs Duncan in their capacities as residuary beneficiaries. It is therefore necessary to ensure that a clear distinction is made between the role of Mr Duncan as executor and the associated but separate role of Mr Duncan and his wife as residuary beneficiaries.
7 In the circumstances, I consider that the following orders should be made: that Mrs Judith Jean Curran should recover her costs of the proceedings, including any reserved costs, to be taxed and paid out of the estate of the deceased. In relation to the applicant Jacqueline Elizabeth Hogg, I consider that she should recover her costs of the proceedings, including any reserved costs, to be taxed and paid out of the estate of the deceased.
8 In relation to Mr Ross Newham Duncan in his capacity as executor, I consider that he should recover his costs incurred in the performance of his role as executor and limited to the performance of that role to be taxed, including any reserved costs, and to be paid out of the estate. There will be no order for the recovery of costs by the second and third defendants, Mr and Mrs Duncan, in their capacity as residuary beneficiaries of the estate of the deceased.
9 With respect to the special issues raised by counsel for Ms Hogg, the situation is that, by the time of this trial before me in November 2005, the principal asset of the estate of the deceased, the unit at Kalamunda, had been sold and the proceeds of the sale recovered and invested, so the controversy about the value of that asset had disappeared, however the net sale price achieved was a figure, as I understand the submissions, significantly greater than the figures contended for by the executor and residuary beneficiaries at the time that issue was in controversy. Similarly, by the time of the trial in November, the controversy over the value of the assets of the second applicant, Jacqueline Hogg, had also disappeared and agreement had been achieved upon the values of her
(Page 6)
- various assets and liabilities largely, as I understand it, at or near the figures that she had always been contending for.
10 Put another way, the objections to the valuation of assets and liabilities of Ms Jacqueline Hogg which had engendered the dispute between her and the respondents had disappeared but in a manner which effectively conceded the position which she had been maintaining. Much the same can be said about the controversy concerning the value of the deceased's unit at Kalamunda.
11 It seems to me, therefore, that the events have revealed that the position adopted by the defendants in contending for a lower value of the house and unit at Kalamunda, and in disputing the extent of the assets and income of Ms Hogg, have failed and that the efforts which were necessary to reach the situation in which her position was accepted have been achieved, were only necessary because of unsuccessful resistance by the defendants. The same result could have occurred without that additional effort and expenditure. As a consequence, the costs incurred by that additional effort and expenditure, in my view, should fall on the interests who caused it, for what in the end, has turned out to be unsuccessful objections.
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