Supreme Court
New South Wales
Medium Neutral Citation: Dixon v Dixon (No 2) [2022] NSWSC 944 Hearing dates: 7 June 2022 Date of orders: 15 July 2022 Decision date: 15 July 2022 Jurisdiction: Equity Before: Parker J Decision: See [90]
Catchwords: COSTS – estate proceedings – discontinued family provision claim – executor entitled to costs against plaintiff and indemnity out of the estate – successful application for appointment of new trustee of testamentary trust for benefit of plaintiff – plaintiff entitled to costs – trustee’s right of indemnity out of the estate – failure to obtain judicial advice – indemnity refused
Legislation Cited: Civil Procedure Act 2005, s 76
Trustee Act 1925, ss 6, 59, 63, 70, 85, 93
Uniform Civil Procedure Rules 2005, rr 20.26, 42.25, Pt 54
Cases Cited: Bovaird v Frost [2009] NSWSC 917
Dixon v Dixon [2022] NSWSC 721
Fay v Moramba Services Pty Ltd [2010] NSWSC 725
Gatsios Holdings Pty Ltd v Kritharas Holdings Pty Ltd [2002] NSWCA 29
Grizonic v Suttor [2011] NSWSC 471
In re Beddoe [1893] 1 Ch 547
Ludwig v Jeffrey (No 4) [2021] NSWCA 256
Miller v Cameron (1936) 54 CLR 572
Category: Principal judgment Parties: Lois Ruth Dixon (Plaintiff)
James Robert Dixon (First Defendant)
Eunice Helen Morgan (Second Defendant)Representation: Counsel:
Solicitors:
AM Combe (Plaintiff)
C Birtles (Defendants)
QV Law (Plaintiff)
O’Neill Solicitors (Defendants)
File Number(s): 2020/359326 Publication restriction: Nil
Judgment
-
These are estate proceedings in which I delivered judgment on 1 June: Dixon v Dixon [2022] NSWSC 721. I found that the trustee of the testamentary trust established for the benefit of the plaintiff should be removed and replaced by the plaintiff’s brother (who is her tutor in the proceedings). I adjourned the proceedings for the parties to agree on orders giving effect to my conclusions and dealing with costs.
-
The parties have agreed on the form of the removal order, and I will make an order in that form in due course. Costs remain in dispute.
-
This judgment assumes familiarity with my earlier judgment (“J1”). It also uses abbreviations used in that judgment.
Background and procedural history
-
The background to the proceedings is set out at J1 [3]-[7]. The deceased and his wife, who predeceased him, had four children, two daughters and two sons. The plaintiff (“Lois”) is the older daughter. She is disabled and in these proceedings her older brother (“Stephen”) is her tutor. The younger son (“James”), who is the first defendant, is the deceased’s executor.
-
The deceased divided his estate into four shares, one for each of his children. The plaintiff’s share was made the subject of a trust…
Continue reading Dixon v Dixon (No 2)
Sign in free to access the full text
- AGLC
- Dixon v Dixon (No 2) [2022] NSWSC 944
- Case
- [2022] NSWSC 944
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the executor was entitled to costs against the plaintiff and indemnity out of the estate for the discontinued family provision claim. Additionally, the court had to decide if the plaintiff was entitled to their own costs and whether the trustee's right of indemnity out of the estate was valid. The plaintiff argued that the executor had failed to obtain judicial advice before commencing the family provision claim, thereby abusing the court process. The court considered the principles governing costs in estate proceedings, including the circumstances under which costs may be awarded and whether a party had acted unreasonably or vexatiously.
The court found that the executor was entitled to costs against the plaintiff and indemnity out of the estate for the discontinued family provision claim. The plaintiff was also awarded their own costs. However, the court refused the trustee's right of indemnity out of the estate, holding that the executor had failed to obtain judicial advice before initiating the family provision claim, which was a significant factor in the decision. The court's reasoning was based on the need to prevent the abuse of court process and to ensure that parties act reasonably and in good faith in estate proceedings. The court's decision highlighted the importance of obtaining judicial advice and the consequences of failing to do so.
The final orders of the court included the executor being entitled to costs against the plaintiff and indemnity out of the estate for the discontinued family provision claim. The plaintiff was awarded their own costs. The court refused the trustee's right of indemnity out of the estate, finding that the executor had acted unreasonably by not obtaining judicial advice before commencing the family provision claim. The case underscores the importance of acting in good faith and obtaining necessary advice in estate proceedings, as well as the consequences of failing to do so.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.