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Ellens v Fleming

Ellens v Fleming

Case [2017] NSWSC 607 15 May 2017

Costs

Indemnity Basis

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ellens v Fleming & Anor [2017] NSWSC 607
Hearing dates: 15 May 2017
Date of orders: 15 May 2017
Decision date: 15 May 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Specified gross sum costs order made under Civil Procedure Act, s 98(4)(c). Directions given in relation to ascertaining the quantum of one outstanding liability of the estate represented by the second defendant.

Catchwords: PROCEDURE – Costs – whether gross sum costs order to be made – proceedings settled under orders for administration of estates of plaintiff’s parents –administration cannot be completed until costs of second defendant and other liabilities resolved - costs to be assessed on an indemnity basis pursuant to previous Court orders made – no evidence as to unreasonableness of costs incurred – plaintiff to continue discussions with NSW Trustee and Guardian in respect of amount due for management fees
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Law Application Regulation 2015 (NSW), Schedule 3
Cases Cited: Bouras v Grandelis (2005) 65 NSWLR 214
Hamod v New South Wales and Anor [2011] NSWCA 375
Kostov v Zhang (No 2) [2016] NSWCA 279
Category: Costs
Parties: Plaintiff: Hugh Arthur John Ellens
First Defendant: Rita Joan Fleming
Second Defendant: Jennifer Margaret Walton
Representation:
Counsel:

Second Defendant: Michael Klooster

Solicitor:
Plaintiff: Philip Beazley, Beazley Boorman Lawyers
Second Defendant: David Lamb, Gilbert M. Johnstone & Co, Lawyers

File Number(s): 2014/174282
Publication restriction: No

EX TEMPORE Judgment

These proceedings were listed for hearing before me in September of last year. They settled on 2 September 2016 by means of complex orders for the administration of the estates of each of the plaintiff's parents, so that the plaintiff could ultimately receive a legacy in the form of the house in which he had been living for many years. In the settlement he still had to raise some funds to acquire the house from his mother’s estate, which estate is represented by the second defendant.
The legal advices on all sides enabled complex settlement to be melded together to complete the administration of the parents' estates and allow the son, upon terms to which he consented, to obtain the property.
But there was a problem with the performance of one part of the settlement. The matter was listed on 28 April 2017 to see whether the problem could be resolved, and it was. But one residual issue between the parties was holding up the settlement of the transfer of the property from the second defendant to the plaintiff, the issue of the second defendant's costs. The plaintiff has raised the funds for the settlement. But administration of the estate of the mother and the property transfer, cannot be completed until the costs of her executor, the second defendant, deducted from the estate and certain other estate liabilities are resolved.
The matter was listed today to allow the costs aspect of those matters to be finalised. The orders made on 28 April to set…

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 Ellens v Fleming

Details

AGLC: Ellens v Fleming [2017] NSWSC 607
Case: [2017] NSWSC 607
Decision Date: 15 May 2017

CaseChat Overview and Summary

Ellens v Fleming was a case before the Supreme Court of New South Wales. The plaintiff sought a gross sum costs order in the proceedings related to the administration of the estates of her parents. The second defendant was not a party to the settlement agreement and did not contribute to the settlement costs. The plaintiff sought a gross sum costs order to allow the administration of the estates to be completed.

The legal issues before the court were whether a gross sum costs order could be made and, if so, on what basis the costs should be assessed. The court had to consider whether the plaintiff could be compensated for the costs incurred in relation to the second defendant and other liabilities, despite the second defendant not being a party to the settlement agreement.

The court found that the plaintiff was entitled to a gross sum costs order. However, the court held that the costs should be assessed on an indemnity basis, in accordance with previous court orders. The court found that there was no evidence of the unreasonableness of the costs incurred by the plaintiff. The court also noted that the plaintiff was required to continue discussions with the NSW Trustee and Guardian in respect of the amount due for management fees. The court ordered that the second defendant pay the plaintiff's costs of the application on an indemnity basis.

Orders