Glen v Union Trustee Company of Australia Limited

The appellants, sons of the testator's nephew John Glen, appealed to the High Court of Australia against an order of the Supreme Court of Victoria concerning the costs of an originating summons and subsequent appeals. The dispute arose because the assignees and encumbrancers of the beneficial interests of the testator's nephews, William Henderson Glen and John Glen, had been joined as defendants and were allowed separate sets of costs from those beneficiaries. The appellants argued that this resulted in an undue burden of costs being cast upon their interests.

The High Court was required to determine whether an appeal lay to the High Court as of right concerning costs only, and if not, whether special leave to appeal should be granted. Furthermore, the Court had to consider the proper application of the rule regarding the costs of assignors and assignees of beneficial interests in estate administration proceedings. Specifically, the Court needed to decide whether the Supreme Court of Victoria had erred in allowing separate sets of costs to multiple assignees and encumbrancers of the same beneficial interests.

The Court held that an appeal on costs only requires special leave under section 35 of the Judiciary Act 1903-1933. Special leave was granted as the matter was of importance and the Supreme Court's order failed to give effect to a settled rule of practice. This rule dictates that where a beneficial interest has been encumbered, only one set of costs should be allowed in respect of that interest, encompassing both the assignor and the assignee(s). The Court reasoned that allowing separate representation and costs for each assignee and encumbrancer of the same interest was contrary to this established practice and imposed an unreasonable burden.

The appeal was allowed, and the order of the Supreme Court of Victoria concerning costs was discharged. In its place, the High Court ordered that the costs of all parties to the originating summons and the appeal to the Full Court be taxed as between solicitor and client and paid out of the relevant properties. However, only one set of costs was to be allowed in respect of the interests of the defendants John Glen and William Henderson Glen. These costs were to be applied first towards the payment of the assignees' and mortgagees' costs according to their priorities, with any excess to be applied towards the costs of the assignors. The Court also made detailed provisions for the taxation and payment of these costs and for any further costs incurred by the assignees and mortgagees.