Grant v Grant; Grant v Grant (No. 6) - [2022] NSWSC 714

Supreme Court

New South Wales

Medium Neutral Citation: Grant v Grant; Grant v Grant (No. 6) [2022] NSWSC 714
Hearing dates: 14 September 2022 and 25 October 2022
Date of orders: 28 October 2022
Decision date: 28 October 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
Additional specified lump sum costs order made in respect of the plaintiff’s costs up to 10 June 2022. Equitable compensation awarded in favour of the estate against the second defendant in the sum of $83,200 in respect of the occupation of estate property. Judgment for other expenses given. Directions made for the calculation of interest.

Catchwords:
COSTS – gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – specified gross sum costs orders already made in long running and strongly contested proceedings among family members in relation to the estate of a deceased parent – specified gross sum costs order already made in respect of period up to 4 April 2022 not quantified – additional claim for a specified gross sum instead of assessed costs in respect of the period 4 April 2022 to 10 June 2022 and quantification – whether additional specified gross sum costs orders should be made.
EQUITABLE COMPENSATION – constructive trusts – calculation of quantum of equitable compensation – finding that property held on constructive trust for the benefit of an elderly person and after his death his estate – property transferred into the name of the second defendant during the deceased’s lifetime and Court determines that the second defendant holds the property on constructive trust for the elderly plaintiff and later his estate – second defendant grants life estate of the property to the first defendant – first defendant occupies the property – what measure of equitable compensation should be paid for depriving the deceased and his estate of the use of the property – calculation of the quantum of appropriate equitable compensation.
CIVIL PROCEDURE – stay of proceedings – judgment entered in favour of the plaintiff in respect of costs and equitable compensation – plaintiff is a special administrator of the estate of the deceased – plaintiff is named executor in the last will of the deceased in 2018 – second defendant is beneficiary under prior will in 2012 – second defendant seeks stay of judgment for costs and equitable compensation – whether a stay should be granted pending determination of related probate proceedings challenging the 2018 will and seeking to propound for admission to probate the 2012 will.

Legislation Cited:
Civil Procedure Act 2005, s 98(4)(c)

Cases Cited:
Grant v Grant [2021] NSWCA 181
Grant v Grant; Grant v Grant (No 2) [2020] NSWSC 1288
Grant v Grant; Grant v Grant (No 3) [2021] NSWSC 1
Grant v Grant; Grant v Grant (No. 4) [2022] NSWSC 106
Grant v Grant; Grant v Grant (No. 5) [2022] NSWSC 773

Category: Consequential orders
Parties:
In proceedings 2017/316190 ("the estate recovery proceedings"):

Representative of the Estate of Alan Grant: Seth Grant
First Defendant: Nerez Grant
Second Defendant:…

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: [2022] NSWSC 714
Decision Date: 28 October 2022

CaseChat Overview and Summary

The case of Grant v Grant; Grant v Grant (No. 6) involves a long-standing and contentious family dispute concerning the estate of a deceased individual. The proceedings encompass multiple family members, with significant legal battles over equitable compensation, costs, and the validity of a will. The Supreme Court of New South Wales was tasked with resolving these complex issues.

The legal issues before the court encompassed the quantification of costs for a specified gross sum instead of assessed costs, the calculation of equitable compensation for the deprivation of the use of a property held on constructive trust, and the appropriateness of a stay of proceedings pending the outcome of related probate matters. The court was also required to consider whether the second defendant, who held the property on constructive trust, should be ordered to pay equitable compensation to the estate of the deceased for the deprivation of the use of the property during a specified period.

The court determined that the second defendant should be ordered to pay a specified gross sum in lieu of assessed costs for the period between 4 April 2022 and 10 June 2022. The court found that the quantum of equitable compensation should be calculated based on the fair market rental value of the property for the period during which the first defendant occupied the property. The court refused to grant a stay of the judgment for costs and equitable compensation, holding that the probate proceedings did not present a compelling reason to delay the enforcement of the judgment. The court held that the plaintiff, as the special administrator and named executor of the estate, was entitled to proceed with the collection of costs and equitable compensation as determined.

The court made orders for the second defendant to pay a specified gross sum for costs incurred between 4 April 2022 and 10 June 2022, and for equitable compensation to be calculated based on the fair market rental value of the property for the relevant period. The court also dismissed the application for a stay of judgment pending the outcome of the probate proceedings.

Orders