Grimmond v Simmons - [2021] NSWSC 1104

Supreme Court

New South Wales

Medium Neutral Citation: Grimmond v Simmons [2021] NSWSC 1104
Hearing dates: 21 June 2021
Date of orders: 31 August 2021
Decision date: 31 August 2021
Jurisdiction: Equity
Before: Henry J
Decision:
Plaintiff’s notice of motion dismissed with no order as to costs of the proceedings.

Catchwords:
COSTS – Party/Party – Court’s discretion – where proceedings relating to deceased’s estate resolved by consent orders without hearing of plaintiff’s claim – where independent third party appointed as administrator of deceased’s estate rather than the plaintiff at plaintiff’s cost – whether defendant’s conduct unreasonable – plaintiff’s application for costs refused – no order as to costs

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56–60, 98(1)(a)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Callaway v Callaway; The Estate of Aileen Margaret Callaway [2019] NSWSC 1275
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Nicol v Nicole; Estate of Peter Nicole [2020] NSWSC 419
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Texts Cited:
Nil

Category: Costs
Parties: Kenneth James Grimmond (Plaintiff)
Lynette Simmons (First Defendant)
Representation:
Counsel:
P Wallis (Plaintiff)

Appearing:
T Wolff, Maloney Anderson Legal (First Defendant)
Solicitors:
Pryor Tzannes & Wallis Solicitors & Public Notaries (Plaintiff)
Maloney Anderson Legal (First Defendant)

File Number(s): 2019/267146
Publication restriction: Nil

Judgment

These proceedings, which were commenced in 2019, relate to the estate of Lola Maude Grimmond (deceased), who died on 10 July 2017 leaving a will made on 13 May 2003 (Will).
The plaintiff and the first defendant are adult children of the deceased and were in dispute regarding the administration of the deceased’s estate. The plaintiff’s claims in these proceedings, which included a claim for letters of administration to be granted to the plaintiff, have been resolved with consent orders that provide for the appointment of an independent third party administrator to the deceased’s estate who is to be funded by the plaintiff.
The only issue remaining for determination concerns the costs of the proceedings.
The plaintiff seeks orders that the first defendant pay his costs of the proceedings. In support of his application for costs, the plaintiff relies on his affidavits filed on 3 April 2020 and 8 May 2020 and four affidavits of his solicitor, Paul Crane, filed on 8 November 2019, 18 June 2020, 16 April 2021 and 11 June 2021 which provide details of the procedural history of these proceedings. A summary of that procedural history is set out below.
The first defendant, who contends that each party should bear their own costs of the proceedings, relies on her affidavit affirmed on 8 June 2021.

Background and procedural history

The first defendant is the named executor under the Will. The deceased’s three children, namely the plaintiff, the first defendant, and another son, David Grimmond, are the beneficiaries under the Will who are entitled to share equally in the whole of…

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 Grimmond v Simmons

Details

AGLC: Grimmond v Simmons [2021] NSWSC 1104
Case: [2021] NSWSC 1104
Decision Date: 31 August 2021

CaseChat Overview and Summary

In Grimmond v Simmons, the plaintiff sought to recover costs from the defendant in relation to proceedings concerning the estate of a deceased individual. The dispute arose after the plaintiff's application to be appointed as the administrator of the estate was denied, and an independent third party was appointed instead. The case was ultimately resolved through consent orders without the plaintiff's claim being heard. The plaintiff argued that the defendant's conduct was unreasonable, leading to the plaintiff's additional expenses. The court was required to determine whether the defendant's conduct warranted an order for the plaintiff to recover costs.

The legal issue before the court was whether the defendant's conduct was unreasonable, warranting the plaintiff's recovery of costs. The court considered the nature of the proceedings, the outcome, and the conduct of the parties involved. The plaintiff contended that the defendant's actions were unreasonable, leading to unnecessary expenses. The court needed to assess the defendant's conduct in the context of the overall resolution of the dispute and the appointment of an independent administrator.

After considering the arguments and the circumstances of the case, the court found that the defendant's conduct was not unreasonable. The court noted that the proceedings had been resolved by consent orders without a hearing, and the appointment of an independent third party as the administrator was a reasonable outcome. The court exercised its discretion and concluded that the plaintiff's application for costs should be refused. Consequently, no order was made as to costs.

Orders