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Douglas v James (No. 2)

Douglas v James (No. 2)

Case [2015] NSWSC 969 22 July 2015

Costs

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Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Douglas v James (No 2) [2015] NSWSC 969
Hearing dates: On the papers
Decision date: 22 July 2015
Jurisdiction: Equity Division
Before: McDougall J
Decision:
See at [65].

Catchwords:
COSTS – where defendants (and cross-claimant) wholly unsuccessful – delinquency – where one cause of action time-barred – where another dropped in substance at the hearing – where defence evidence voluminous and largely irrelevant – usual result of assessment on the indemnity basis – whether ‘probate exception’ applies – where non-adversarial approach was available to trustees but not utilised – consequence that proceedings were needlessly adversarial
COSTS – submitting appearances – where defendant filed a submitting appearance less than a fortnight before the hearing – where defendant highly active in preparation for, and support during, litigation – consequence that submitting defendant to be treated as an active defendant for costs purposes
Legislation Cited: Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: BE Australia WD Pty Ltd (Subject to a deed of company arrangement) v Sutton (2011) 82 NSWLR 336
Clocchiatti v Pierobon [2014] NSWSC 488
Douglas v James [2015] NSWSC 299
Re Buckton; Buckton v Buckton [1907] 2 Ch 406
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645
Murdocca v Murdocca (No 2) [2002] NSWSC 505
Oshlack v Richmond River Council (1998) 193 CLR 72
Seller v Jones [2014] NSWCA 19
Category: Costs
Parties: Zeta Kathleen Douglas (First Plaintiff / First Cross-Defendant / First Respondent)
Marea Gilbert (Second Plaintiff / Second Cross-Defendant / Second Respondent)
David James (First Defendant / Cross-Claimant / Applicant)
Janina Kik (Second Defendant / Sixth Cross-Defendant / Sixth Respondent)
Trudy James (Third Defendant / Fifth Cross-Defendant / Fifth Respondent)
Lyn Ison (Third Cross-Defendant / Third Respondent)
Angela Webber (Fourth Cross-Defendant / Fourth Respondent)
John Croce Palmieri (Seventh Cross-Defendant / Seventh Respondent)
Representation:
Counsel:
L Ellison SC (Plaintiffs)
R Dubler SC and M Dolenec (Defendants)
Solicitors:
Adrian Holmes Lawyer (Plaintiffs)
Kekatos Lawyers (Defendants)

File Number(s): 2014/107434

Judgment

HIS HONOUR: I gave judgment in these proceedings on 25 March 2015 ([2015] NSWSC 299). In that judgment, I concluded that the plaintiffs succeeded, and were in substance entitled to the relief sought; and that the cross-claim failed. I made substantive orders accordingly, but reserved the question of costs.
The parties have now put on detailed submissions, including in reply, on the question of costs. They accept that the question may be dealt with “on the papers”. Having regard to the detailed submissions, I propose to do so.

Nature of the proceedings

To give content to what follows, and to enable some understanding of the issues, I set out [1] to [20] of my first judgment:

[1] HIS HONOUR: These proceedings concern complex testamentary trusts created by the will of the late Stanley Edward Douglas. The specific question for decision is whether the first defendant (Mr James), as “Appointor” for the “Capital Protected Trust” (CPT) created by the will, had…

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 Douglas v James (No. 2)

Details

AGLC: Douglas v James (No. 2) [2015] NSWSC 969
Case: [2015] NSWSC 969
Decision Date: 22 July 2015

CaseChat Overview and Summary

In the case of Douglas v James, the dispute involved the trustees of a trust fund, who were the plaintiffs, against James, the defendant and cross-claimant. The plaintiffs sought to recover certain payments made under the trust deed, while James counterclaimed for an accounting of trust funds. The case was heard in the Supreme Court of South Australia.

The primary legal issues addressed by the court included whether the 'probate exception' to the usual indemnity costs rule applied, given the unsuccessful outcome of the defendants and cross-claimant, their delinquency, and the needless adversarial nature of the proceedings. Additionally, the court had to consider the appropriate costs treatment of James, who filed a submitting appearance shortly before the hearing despite being highly active in the litigation.

The court found that the 'probate exception' did not apply due to the needless adversarial nature of the proceedings, which could have been avoided with a non-adversarial approach. The court held that James, who filed a submitting appearance less than two weeks before the hearing and was highly active in the litigation, should be treated as an active defendant for costs purposes. Consequently, the court awarded costs on the indemnity basis against the defendants and cross-claimant, with James being treated as an active defendant. The plaintiffs were granted a costs order against James for his cross-claim, which was dropped in substance at the hearing.

The court's final orders included that James pay the plaintiffs' costs of the proceeding on an indemnity basis, and that James pay the plaintiffs' costs of the cross-claim on an indemnity basis.

Orders