Foord v Brock

Case [2005] NSWCA 156
CITATION:

FOORD v. BROCK & ORS [2005] NSWCA 156
HEARING DATE(S):

05 & 06/05/2005
 
JUDGMENT DATE: 


31 August 2005

JUDGMENT OF:

Giles JA at 1; Bryson JA at 2-85; Brownie AJA at 86
DECISION:

Order: 1. Appeal allowed with costs; 2. Set aside Orders 1, 2, 3 and 4 made by Master McLaughlin on 2 December 2003; 3. In lieu thereof order; (a) the remuneration and the costs of Kevin Richard Shirlaw including legal costs be paid or retained by him out of the assets of the testatrix; (b) the plaintiffs cross-defendants are to pay the defendant cross-claimant's costs of the proceedings in the Equity Division; 4. The respondents if otherwise qualified are to have a certificate under the Suitors' Fund Act 1951.
CATCHWORDS:

COSTS - Probate proceedings - appeal from Master's orders on costs of Probate proceedings and remuneration and expenses of Administrator (professional Liquidator) appointed by consent of parties to resolve dispute about entitlement to Probate - Consideration of powers of the Court to make orders as to Administrator's remuneration - Master's orders set aside and discretion exercised again by Court of Appeal - majority decision on re-exercise.
LEGISLATION CITED:

Criminal Justice Act 1988 (U.K) , s.77
Legal Profession Act 1987
Supreme Court Act 1970, s.76(1) and (2)
Supreme Court Act 1981 (U.K), s.51
Wills Probate and Administration Act 1898. s.75(1)
CASES CITED:

Commissioner for Railways v Small (1938) 38 SR NSW 564
In Re Andrew [1999] 1WLR 1236
In Re Skinner, Cooper v Skinner [1904] 1 Ch 289 (Farwell J)
NSW Commissioner of Police v Tuxford (2002 NSWCA 139)
Shirlaw v Taylor (1991) 31 FCR 222
Springett v Dashwood (1860) 2 Gifford 521, 66ER 218
PARTIES:

Bronwyn Foord - Appellant
Adrian Brock and Jennifer Brock
Roslyn Donohoe - Respondents
FILE NUMBER(S):

CA 41264/2003
COUNSEL:

J. Whittle SC and J. O'Connor - Appellant
S.C. Lindsay SC - Respondents
SOLICITORS:

Kenneally & Co Lawyers, Oatlands - Appellant
The Argyle Partnership - Respondents
LOWER COURT JURISDICTION:

Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):

SC 107681/2001

LOWER COURT JUDICIAL OFFICER:

Master McLaughlin



                          CA 41264/2003

                          GILES JA
                          BRYSON JA
                          BROWNIE AJA
                    Wednesday, 31 August 2005
BRONWYN FOORD v. ADRIAN BROCK & ORS
Judgment

1 GILES JA: I have had the advantage of reading the reasons of Bryson JA in draft. Save as to the order now to be made as to the administration costs, I agree with them; I also agree with the additional observations of Brownie AJA. I agree with what Brownie AJA has said concerning the administration costs, and with the orders proposed by his Honour.

2 BRYSON JA: Mrs Joyce Isabel Holyhead late of Blakehurst New South Wales died on 26 December 1999 aged eighty-four years. Her husband Mr Norman William Holyhead predeceased her. By her last will dated 22 March 1994 Mrs Holyhead appointed her three daughters, Mrs Rosalyn Joy Donohoo, Mrs Bronwyn Sue Foord, Mrs Jennifer Robin Brock and Mrs Brock’s husband Mr Adrian Gerald Brock as executors and trustees of her will, and…

Continue reading Foord v Brock

Sign in free to access the full text

Details
AGLC
Foord v Brock [2005] NSWCA 156
Case
[2005] NSWCA 156
Decision Date

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an appeal concerning the costs of probate proceedings and the remuneration of an administrator. The dispute arose from an entitlement to probate, leading to the appointment of a professional liquidator, Kevin Richard Shirlaw, by the consent of the parties. The appeal was brought against orders made by Master McLaughlin regarding the administrator's remuneration and expenses, as well as the costs of the probate proceedings themselves.

The central legal issues before the Court of Appeal were the extent of the court's power to make orders concerning an administrator's remuneration and the appropriate exercise of discretion in awarding costs in probate matters, particularly where a professional administrator is appointed to resolve disputes. The court was required to determine whether the Master's orders concerning these matters were correct and, if not, to re-exercise that discretion.

The majority of the Court of Appeal allowed the appeal, setting aside the Master's orders. The court reasoned that the administrator's remuneration and legal costs should be paid or retained by him out of the assets of the testatrix. Furthermore, the court ordered that the plaintiffs, who were also cross-defendants, were to pay the defendant cross-claimant's costs of the proceedings in the Equity Division. The respondents were also granted a certificate under the Suitors' Fund Act 1951, provided they met the necessary qualifications.

Orders

Orders of the court

Order: 1. Appeal allowed with costs; 2. Set aside Orders 1, 2, 3 and 4 made by Master McLaughlin on 2 December 2003; 3. In lieu thereof order; (a) the remuneration and the costs of Kevin Richard Shirlaw including legal costs be paid or retained by him out of the assets of the testatrix; (b) the plaintiffs cross-defendants are to pay the defendant cross-claimant's costs of the proceedings in the Equity Division; 4. The respondents if otherwise qualified are to have a certificate under the Suitors' Fund Act 1951.

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.