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

1. 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.

2. 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 In the Court’s second judgment on 18 May 2012 the grant of probate to Ian Davis was revoked: Davis v Davis (No. 2) [2012] NSWSC 523.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.

3. 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 unlimited order for Graham’s costs to be borne by Ian alone, until those costs are quantified. Accordingly, the Court will make directions for Graham to notify the NSW Trustee on behalf of the estate of the quantum of those costs and for what is payable to be agreed or assessed. The Court will then make a determination of what proportion of Graham’s costs, if any, will borne by Ian, upon further application. Making an order of this kind before knowing what is the quantum of the costs, may work considerable unfairness among the parties.”

4. Since the second judgment, the plaintiff Graham Davis has notified the NSW Trustee & Guardian of his costs of the proceedings, and they have now been agreed. The NSW Trustee & Guardian’s present motion before the Court seeks the following orders:

“(1)   Order that the NSW Trustee & Guardian be joined as the second defendant in these proceedings pursuant to rule 7.11 of the Uniform Civil Procedure Rules 2005.

(2)   Order that the sum of $17,085.98 payable by the Estate of John Joseph Davis to the plaintiff pursuant to Order 5 made on 18 May 2012 be paid out of the first defendant’s entitlement to the residue of the Estate.

(3)   Order that the first defendant pay the costs of the applicant of this motion on the indemnity basis.”

5. The NSW Trustee and Guardian’s claim is that Graham's legal costs of the administration proceedings in the sum of $17,085.98 should now be paid out of Ian Davis' share of the residue of the estate. On 21 October 2013, Verekers Wollongong Lawyers, acting for Graham Davis, sent a detailed itemised account of legal costs, expenses and disbursements to the NSW Trustee & Guardian, amounting to a total claim for $22,781.30. Since then negotiations between the NSW Trustee & Guardian, now the administrator of the estate, have reduced those fees, to the figure now claimed, $17,085.98. This reduction is largely explained by two factors: (1) the removal of work done by the solicitors for Graham in relation to associated Family Provision Act proceedings; and, (2) the removal of any solicitor/client costs. The resultant agreed figure represents the party/party costs of only the administration proceedings. Having looked through Verekers itemised account, it does seem to me that the costs associated with those two components have clearly been removed.

6. As the second judgment shows, the Court (at [26]), was not prepared to make a blanket order that Ian's share of the estate bear these costs without them being quantified in some way. That was for the very reason that has now emerged: that Graham’s costs would include unrelated costs; namely, the costs of Family Provision Act proceedings. But now those costs have been removed as have the solicitor/client costs, I see no impediment to making this kind of order. The findings that the Court made in the second judgment show clearly that Graham's decision to bring the proceedings (which resulted ultimately in the removal of Ian as an executor of the estate), was well justified. Ian’s administration of the estate before the Court removed him as executor was wholly inadequate.

7. It would be unfair, in my view, for Graham to have to bear any of the costs of the removal of Ian as an executor because of Ian's maladministration of the estate. The proper course is for orders to be made under Trustee Act 1925, s 93 that Ian's share of the estate bear the sum of $17,085.98: I note the following matters: (1) that the amount is already the subject of an agreement between the estate and Graham; (2) that it represents a compromise to which the estate is now bound; (3) that the estate and Graham have in substance agreed that there will not be a costs assessment, and, (4) that administrative costs have therefore been avoided.

8. I do not think this is a case, therefore, where I have to seek to assess gross sum costs under the Civil Procedure Act 2005, s 98. But were I required to do so, having looked at Verekers itemised costs of October 2013, I would assess the amount agreed as reasonable. Accordingly, I will make the orders sought in the motion. Order 1 is necessary because the new administrator needs to be joined as a party in order to be able to get the benefit of these orders.

9. The orders of the Court, with the exception of costs, to which I will come in a moment, will be orders 1 and 2 of NSW Trustee and Guardian’s motion.

10. Mr Johnson for the NSW Trustee and Guardian seeks an order for costs. Ian Davis resists that. Mr Johnson relies upon the fact that he has been successful on the motion. As he did in earlier argument, Ian says that the plaintiff Graham, did not approach him before earlier steps in the proceedings were taken. But that is not a sufficient basis to resist an order for costs of the present motion, which was successful.

11. I record at this final part of the judgment that Ian submits that he has not had a proper opportunity to be represented in these proceedings. But I note that the present motion was commenced in December 2014, and it came before McDougall J on 6 March 2015. His Honour then allowed an adjournment until today to permit Ian to get legal pro bono or other legal advice. Ian made a number of statements today from the Bar table about his inability to get legal advice. But in my view an adjournment of approximately one month for that purpose for a motion such as this is perfectly adequate. There is no basis for any further adjournment. Nothing has been put before the Court which leads the Court to believe that any further adjournment would be likely to result in Ian obtaining legal representation. I note that Ian conducted the trial of these proceedings in 2012 without any legal representation. I decline to adjourn the proceedings.

Conclusion and Orders

12. His Honour makes the following orders and directions:

1. Order that the NSW Trustee & Guardian be joined as the second defendant in these proceedings pursuant to rule 7.11 of the Uniform Civil Procedure Rules 2005;

2. Order that the sum of $17,085.98 payable by the Estate of John Joseph Davis to the plaintiff pursuant to Order 5 made on 18 May 2012 be paid out of the first defendant’s entitlement to the residue of the Estate; and

3. Order the first defendant Mr Ian Davis pay the NSW Trustee & Guardian's costs of this motion, on the indemnity basis out of Mr Ian Davis' entitlement to the residue of the estate of the late John Joseph Davis.

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Decision last updated: 10 April 2015