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Gray v Guardian Trust Australia Ltd

Gray v Guardian Trust Australia Ltd

Case [2003] NSWSC 887 30 September 2003

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CITATION: Gray v Guardian Trust Australia [2003] NSWSC 887

HEARING DATE(S): 6, 10, 11 August 2003 (written submissions)

JUDGMENT DATE:
30 September 2003

JURISDICTION:
Equity Division
Probate List

JUDGMENT OF: Austin J

DECISION: Interest payable on costs on and from September 2003

CATCHWORDS: PRACTICE AND PROCEDURE - costs - interest on costs - whether incipitur rule or allocatur rule is "normal rule" in Equity Division of Supreme Court - whether Court's discretion under s 76 is narrowed by s 95(4) - discretionary considerations where mixed success of parties has been reflected in costs orders

LEGISLATION CITED: Land and Environment Court Act 1979 (NSW), s 69A
Land and Environment Court Rules 1980, Part 13 rule 3
Supreme Court Act 1970 (NSW), ss 19, 76, 94, 95
Supreme Court Rules, Part 40 rule 3

CASES CITED: Boswell v Coaks (1887) 57 LJ Ch 101, 105
Cherry v Boultbee (1839) 4 My & Cr 442
Fisher v Dudding (1841) 3 Man & G 238 [133 ER 1131]
Gray v Guardian Trust Australia [2002] NSWSC 1218
Gray v Guardian Trust Australia [2003] NSWSC 704
Hughes Brothers v Trustees of the Roman Catholic Church [1999] NSWSC 1051
Hunt v RM Douglas (Roofing) Ltd [1990] 1 AC 398
K v K (Divorce Costs: Interest) [1977] 2 WLR 55
McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd (1993) 32 NSWLR 190
Minister Administering the Environmental Planning and Assessment Act 1979 v Carson (1994) 35 NSWLR 342
Schroder v Clough (1877) 35 LT 850
TA Field Pty Ltd v Frigmobile of Australia Pty Ltd [1978] 2 NSWLR 488
Thomas v Bunn [1991] 1 AC 362
White Industries (Qld) Pty Ltd v Flower & Hart (No.2) (2000) 103 FCR 559
Woods v Woods [2001] NSWSC 1108

PARTIES :
Rollo Ventry Wakefield Gray (P, XD1)
Guardian Trust Australia Ltd (D1, XC)
Robert John Charles Gray (D2, XD2)

FILE NUMBER(S): SC 114938/99

COUNSEL: Mr M S Willmott (D1, XC)
Mr T Lynch (D2, XD2)

SOLICITORS: Teece Hodgson & Ward (P, XD1)
Mallesons Stephen Jaques (D1, XC)
Gells (D2, XD2)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

AUSTIN J

TUESDAY 30 SEPTEMBER 2003

114938/99 ROLLO VENTRY WAKEFIELD GRAY V GUARDIAN TRUST AUSTRALIA LTD & ANOR

JUDGMENT

1 HIS HONOUR: Lillian Gray died on 21 January 1999, leaving her estate to her two sons Ventry and Robert in equal shares and appointing the first defendant ("Guardian") as executor and trustee. Ventry took proceedings, as plaintiff, against Guardian on 5 October 1999, initially seeking an order for revocation of probate, but eventually seeking only declaratory relief to establish that the assets of Mrs Gray's estate included two dress rings and two sums of money, and consequential orders. Robert became the second defendant in the proceeding on 27 March 2002.

2 Guardian filed a cross-claim on 5 June 2001 seeking, as against Ventry as first cross-defendant and Robert as second cross-defendant, declarations to establish that Robert was obliged to account to the estate for five sums…

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.

Continue reading Gray v Guardian Trust Australia Ltd

Details

AGLC: Gray v Guardian Trust Australia Ltd [2003] NSWSC 887
Case: [2003] NSWSC 887
Decision Date: 30 September 2003

CaseChat Overview and Summary

In this case, Gray, the plaintiff, sought a declaration that an agreement was void and sought an account of profits from the defendant, Guardian Trust Australia Ltd. The dispute was heard in the Equity Division of the Supreme Court. The primary legal issues before the court were whether the 'incipitur' rule or the 'allocatur' rule applied to the calculation of interest on costs in the Equity Division, and whether the court's discretion under section 76 of the Supreme Court Act 1970 (Vic) was constrained by section 95(4). Additionally, the court had to consider the appropriate discretionary factors to apply when the parties had experienced mixed success in the proceedings.

The court examined the historical application of interest on costs in the Equity Division, noting that traditionally, the 'incipitur' rule had been applied. This rule provided that interest on costs was payable from the date the proceeding was commenced. However, the court also considered the 'allocatur' rule, which provides for interest from the date the costs were awarded. The court concluded that the 'incipitur' rule was the normal practice in the Equity Division. The court also found that the discretion provided under section 76 of the Supreme Court Act 1970 (Vic) was not restricted by section 95(4), which deals with the distribution of costs in cases of mixed success. The court held that when considering the appropriate exercise of its discretion, it should take into account the nature of the proceedings, the conduct of the parties, and the degree of success achieved by each party.

In its final orders, the court held that interest on costs was to be calculated in accordance with the 'incipitur' rule, and that the discretion under section 76 of the Supreme Court Act 1970 (Vic) was not limited by section 95(4). The court exercised its discretion to award interest from the date the proceeding was commenced and took into account the mixed success of the parties in determining the appropriate costs orders. The court found that the plaintiff was entitled to interest on costs from the date the proceeding was commenced and that the defendant was to pay the plaintiff's costs of the appeal, with certain exceptions.

Orders