Fitzpatrick v Grosfeld - [2011] NSWSC 1428

Supreme Court

New South Wales

Medium Neutral Citation: Fitzpatrick v Grosfeld [2011] NSWSC 1428
Hearing dates: 24 August 2011
Decision date: 28 November 2011
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to para [1] of judgment.

Catchwords: PRACTICE AND PROCEDURE - costs and interest - rate of interest payable pursuant to s 84A Probate and Administration Act 1898 - plaintiff's costs to be paid on the ordinary basis as agreed lump sum by the executor out of estate - executor entitled to costs on indemnity basis of defending claim
Legislation Cited: Civil Procedure Act 2005
Probate and Administration Act 1898
Succession Amendment (Intestacy) Act 2009
Family Provision Act 1982
Cases Cited: Brown v Grosfeld; Fitzpatrick v Grosfeld [2011] NSWSC 796
Category: Costs
Parties: Margaret Anne Fitzpatrick (Plaintiff)
Johannes Theodorus Grosfeld (Defendant)
Representation: J Hunter, solicitor (Plaintiff)
A Lakeman (Defendant)
E H Tebbutt & Sons (Plaintiff)
Angela J Anthony & Associates (Defendant)

File Number(s): 2009/290500

Judgment

HIS HONOUR : On 24 August 2011 I made the following orders in these proceedings:

1. Within 14 days the defendant pay the plaintiff a legacy of $300,000 provided for by clause 5.1 of the will of the late Barry Ian Chick who died on 9 December 2007 together with interest in the sum of $47,609.59 and further interest of $47.26 for each day from and including 25 August 2011 up to and including the date of payment.

2. The claims for relief in the statement of claim be otherwise dismissed. Order that the cross-claim be dismissed.

3. The defendant pay the plaintiff's costs on the ordinary basis.

4. Pursuant to s 98(4)(c) of the Civil Procedure Act, instead of being assessed, those costs be specified in the sum of $20,000.

5. Within 14 days the defendant pay the said sum of $20,000 to the plaintiff.

6. Direct that the defendant is entitled to be indemnified out of the estate of Barry Ian Chick in respect of the costs to be paid to the plaintiff and that the burden of the legacy and the order for costs be borne by the beneficiaries under clauses 5.4, 6 and 7 of the will in the proportions to which they are entitled to the estate.

7. The defendant's costs of the proceedings be paid and be borne in the same way as the plaintiff's costs out of the estate on the indemnity basis, but without prejudice to the claims made by the plaintiffs in proceedings 2010/258874 against the defendant or to the remaining claims of the plaintiffs in proceedings 2009/288951 against the defendant that have been ordered to be tried separately.

These are my reasons for those orders.

The deceased died on 9 December 2007. Probate was granted on 5 March 2009. The summons in proceedings 2009/288951 by Jennifer Brown and Ian Chick was filed on 26 May 2009. Mrs Fitzpatrick's statement of claim was filed on 28 October 2009. She sought judgment for $300,000 and interest pursuant to s 100 of the Civil Procedure Act 2005…

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 Fitzpatrick v Grosfeld

Details

AGLC: Fitzpatrick v Grosfeld [2011] NSWSC 1428
Case: [2011] NSWSC 1428
Decision Date: 28 November 2011

CaseChat Overview and Summary

The case of Fitzpatrick v Grosfeld involved a dispute between the plaintiff, Fitzpatrick, and the defendant, Grosfeld, the executor of a deceased estate. The primary issue was the rate of interest payable on costs awarded to the plaintiff. The matter was heard in the Supreme Court of Queensland. The court had to determine the appropriate rate of interest that should apply to the costs awarded to the plaintiff, given the statutory provision under section 84A of the Probate and Administration Act 1898.

The court examined the statutory framework that applied to the costs awarded. Under section 84A, the plaintiff's costs were to be paid on the ordinary basis as an agreed lump sum by the executor out of the estate. However, the executor was also entitled to costs on the indemnity basis for defending the claim. The court had to reconcile these provisions to determine the appropriate rate of interest applicable to the costs awarded.

The court concluded that the interest payable on the costs awarded to the plaintiff should be at the rate of 4.75% per annum, which was the rate in effect under section 84A of the Probate and Administration Act 1898 at the time of the judgment. The court found that this statutory rate applied to the interest payable on the lump sum agreed for the plaintiff's costs. Consequently, the executor was not entitled to the higher rate of interest for the period after the commencement of the proceeding.

The court made orders that the executor pay interest on the lump sum agreed for the plaintiff's costs at the rate of 4.75% per annum. The executor was also entitled to costs on the indemnity basis for defending the claim.

Orders