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De Angelis v Laundy

De Angelis v Laundy

Case [2014] NSWSC 456 3 April 2014

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Supreme Court

New South Wales

Medium Neutral Citation: de Angelis v Laundy [2014] NSWSC 456
Hearing dates: 31 March, 1-2 April, 2014
Decision date: 03 April 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
See Paragraph 73 of the Judgment

Catchwords: COSTS - Contested Probate Proceedings - No dispute about validity of Will - Dispute about validity of Codicil - Cross-Claimant does not seek to propound Codicil on third day of hearing - How the burden of costs should be borne - Both parties, who are siblings, are named executors but agree that they cannot administer the estate together - Utility of independent administrator to administer the estate - Independent administrator consented to by both parties appointed
Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562
Kostic v Chaplin [2007] EWHC 2909; [2007] All ER (D) 119
McNamara v Bao San [2010] NSWSC 809
Middlebrook v Middlebrook (1962-1963) 36 ALJR 216
Mitchell v Gard (1863) 3 Sw & Tr 275 at 279; 164 ER 1280
Nicholson v Knaggs [No 3 - Severance And Costs] [2009] VSC 328
Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244
Re Estate of the late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Re Plant [1926] P 139
Shorten v Shorten (No 2) [2003] NSWCA 60
Category: Costs
Parties: Robyn Lesley De Angelis (Plaintiff)
Arthur Harold Laundy (first Defendant)
Laundy Enterprises Pty Ltd ACN 000 212 617 (second Defendant)
Laundy (Trading) Pty Ltd ACN 000 497 254 (third Defendant)
Representation: Counsel:
Dr A Bell SC; Mr M Izzo (Plaintiff)
Mr M Willmott SC; Mr D Liebhold (first Defendant)
Solicitors:
Yeldham Price O'Brien Lusk (Plaintiff)
Teece Hodgson & Ward Solicitors
(Defendants)

File Number(s): 2012/373295

Judgment EX TEMPORE (REVISED)

The Claims Made

HIS HONOUR: These reasons arise out of contested Probate proceedings in which the Plaintiff, Robyn Leslie De Angelis, in a Statement of Claim filed on 30 November 2012, sought probate in solemn form, to her, of a duly executed Will made by her mother, Veronica Julia Laundy ("the deceased") on 5 December 1995 ("the 1995 Will") (Ex. D2) and, in the alternative, probate in solemn form, to her, of the 1995 Will and a Codicil dated 6 March 2012 ("the 2012 Codicil")(Ex. D3), in each case reserving leave to the first Defendant, her brother, Arthur Harold Laundy, to come in and apply for probate. She also sought an order that the costs of the application be paid.

In addition, the Plaintiff sought an order, pursuant to s 247A of the Corporations Act 2001 (Cth), that her legal and/or financial advisers be entitled to inspect the books of the second and third Defendants on behalf of the Plaintiff. These Defendants are Laundy Enterprises Pty Ltd ("LEPL") and Laundy Trading Pty Ltd ("LTPL"). Each is a registered Australian proprietary company, limited by shares, and both…

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 De Angelis v Laundy

Details

AGLC: de Angelis v Laundy [2014] NSWSC 456
Case: [2014] NSWSC 456
Decision Date: 03 April 2014

CaseChat Overview and Summary

The parties in this case were siblings, De Angelis and Laundy, who were involved in a dispute over the validity of a codicil to a will. The case was heard in the Supreme Court of New South Wales. The central issue was whether the codicil was valid and, if not, how the costs of the proceedings should be allocated. The dispute did not extend to the validity of the will itself. The siblings were both named as executors but agreed that they could not administer the estate together. Therefore, the court had to determine the most appropriate way to bear the costs of the proceedings and to appoint an independent administrator to manage the estate.

The legal issues before the court included the interpretation of the codicil and the appropriate allocation of costs in contested probate proceedings where there was no dispute over the validity of the will. The court had to consider whether the cross-claimant's failure to propound the codicil on the third day of the hearing affected the costs decision. Additionally, the court had to determine the best course of action for appointing an independent administrator to manage the estate, given that both parties agreed they could not administer it together.

The court determined that the burden of costs should not be borne solely by the cross-claimant due to their failure to propound the codicil on the third day of the hearing. The court emphasised that the dispute was limited to the validity of the codicil, and the cross-claimant's procedural error should not result in an inequitable allocation of costs. The court also found that appointing an independent administrator was the most practical solution for managing the estate, given the siblings' inability to cooperate. Both parties consented to the appointment of an independent administrator, who was subsequently appointed by the court.

The final orders included the rejection of the cross-claimant's request for costs based on their procedural error and the appointment of an independent administrator to manage the estate. The court directed that the costs of the proceedings be shared between the parties in a manner that it deemed just and equitable, taking into account the limited nature of the dispute and the siblings' agreement on the need for an independent administrator.

Orders