Graham Davis v Ian Andrew Davis - [2015] NSWSC 404

Supreme Court

New South Wales

Medium Neutral Citation: Graham Davis v Ian Andrew Davis [2015] NSWSC 404
Hearing dates: 10 April 2015
Date of orders: 10 April 2015
Decision date: 10 April 2015
Jurisdiction: Equity Division
Before: Slattery J
Decision:
See paragraph [12] of judgment.

Legislation Cited: Civil Procedure Act 2005, s 98
Uniform Civil Procedure Rules 2005, r 7.11
Cases Cited: Graham Davis v Ian Andrew Davis; Robyn Davis by Her Tutor Sandra Arnold v Ian Andrew Davis as the executor of the estate of the late John Joseph Davis [2012] NSWSC 201
Graham Davis v Ian Andrew Davis; Robyn Davis by Her Tutor Sandra Arnold v Ian Andrew Davis as the executor of the estate of the late John Joseph Davis (No 2) [2012] NSWSC 523
Category: Costs
Parties: Plaintiff: Graham Davis
First defendant: Ian Andrew Davis
Applicant: NSW Trustee & Guardian
Representation: Solicitors:
Applicant: Jeffrey Johnson, ProActive Legal Pty Ltd
Plaintiff: no appearance
First defendant: in person

File Number(s): 2011/48414
Publication restriction: No

EX TEMPORE Judgment

This is my third judgment in these proceedings. It answers the question as to what part of the estate of the late John Joseph Davis should bear Graham Davis' costs of the principal proceedings, which were heard before me in early 2012. The Court concluded in the principal proceedings that orders should be made for the sale held by the estate’s real estate, and directions were given for the further determination of whether the probate granted to the defendant, Ian Davis, should be revoked: Graham Davis v Ian Andrew Davis; Robyn Davis by Her Tutor Sandra Arnold v Ian Andrew Davis as the executor of the estate of the late John Joseph Davis [2012] NSWSC 201.
The matter of whether Ian Davis’ grant of probate should be revoked came before me on 7 March 2012. In the Court’s second judgment on 18 May 2012 the grant of probate to Ian Davis was revoked: Davis v Davis (No. 2) [2012] NSWSC 523. The Court concluded (at [16)] that Mr Ian Davis was not a fit and proper person to carry out the duties of an executor of the estate.
This judgment should be read with the Court's two previous judgments. Events, matters and things are referred to in this judgment in the same way as they are in the previous judgments. In the second judgment the Court said on the issue now before the Court:

“[26] In the principal judgment the Court indicated that it would order that the estate pay Graham’s costs of the administration proceedings. But the Court deferred a decision as to whether those costs or some portion of them should be borne by Ian until the quantum of Graham’s costs was made clear: cf Graham Davis v Ian Andrew Davis; Robyn Davis by Her Tutor Sandra Arnold v Ian Andrew Davis as the executor of the estate of the late John Joseph Davis [2012] NSWSC 201 at [107]. The Court is not prepared to make an…

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.

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Details

Case: [2015] NSWSC 404
Decision Date: 10 April 2015

CaseChat Overview and Summary

This case was heard in the Supreme Court of New South Wales by Justice Slattery on 10 April 2015. The case involved a dispute between Graham Davis and Ian Andrew Davis, and the legal issues at hand related to the allocation of costs associated with the administration of the estate of the late John Joseph Davis. The court was required to decide whether the costs should be borne by Ian Andrew Davis, the first defendant, or by the estate itself.

In reaching its decision, the court noted that it had previously concluded that orders should be made for the sale of the estate's real estate, and directions were given for the further determination of whether the probate granted to Ian Davis should be revoked. The court had revoked the grant of probate to Ian Davis on 7 March 2012, finding that he was not a fit and proper person to carry out the duties of an executor of the estate. The court deferred a decision on the issue of costs until the quantum of Graham's costs was made clear.

In light of the agreed figure of $17,085.98 representing the party/party costs of the administration proceedings, the court found that it would be unfair for Graham to bear any of the costs of the removal of Ian as an executor due to his maladministration of the estate. Therefore, the court made orders that Ian's share of the estate bear the sum of $17,085.98, and that the NSW Trustee & Guardian be joined as the second defendant in these proceedings.

Furthermore, the court ordered that Ian Davis pay the costs of the NSW Trustee & Guardian's motion on the indemnity basis out of his entitlement to the residue of the estate of the late John Joseph Davis. Justice Slattery declined to adjourn the proceedings, noting that Ian had conducted the trial of these proceedings in 2012 without any legal representation, and that a one-month adjournment for him to obtain legal advice was adequate.

Orders