Grove v Kenworthy-Groen - [2021] WASC 227

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   GROVE -v- KENWORTHY-GROEN [2021] WASC 227
CORAM:   HALL J
HEARD:   24 JUNE 2021
PUBLISHED           :   13 JULY 2021
FILE NO/S:   CIV 1532 of 2020
BETWEEN:   JOHN GROVE
Plaintiff
AND
SIMON DIRK KENWORTHY-GROEN
First Defendant
SIMON DIRK KENWORTHY-GROEN as executor of the estate of WILLIAM GROVE
Second Defendant
ANDREW HENDRICK GROVE
Third Defendant
SIMON DIRK KENWORTHY-GROEN
SIMON DIRK KENWORTHY-GROEN as executor of the estate of WILLIAM GROVE
Plaintiff by counterclaim
JOHN GROVE
ANDREW HENDRICK GROVE
Defendant by counterclaim

Catchwords:

Costs - Proceedings for the appointment of an administrator to a deceased estate - Matter settled by the appointment of the Public Trustee - Whether, and to what extent, the defendants are successful parties - Indemnity costs

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Costs order made

Category: B

Representation:

Counsel:

Plaintiff	:	Mr P D C Robinson
First Defendant	:	Mr L A Tsaknis
Second Defendant	:	Mr L A Tsaknis
Third Defendant	:	Ms M van der Kwast
Plaintiff by counterclaim	:	Mr L A Tsaknis
Defendant by counterclaim	:	Mr P D C Robinson & Ms M van der Kwast

Solicitors:

Plaintiff	:	Williams & Hughes
First Defendant	:	Fort Knox Legal
Second Defendant	:	Fort Knox Legal
Third Defendant	:	Dwyer Durack
Plaintiff by counterclaim	:	Fort Knox Legal
Defendant by counterclaim	:	Williams & Hughes & Dwyer Durack

Case(s) referred to in decision(s):

Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103
Gray v Sirtex Medical Ltd formerly known as Paragon Medical Ltd [2009] WASC 126
Lafferty v Waterton [2016] WASCA 183
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Wheatley v Bower [2001] WASCA 293
Yara Australia Pty Ltd v Oswal [2012] WASCA 264

HALL J:

These proceedings relate to an application by the plaintiff to be appointed the administrator of his deceased sister's estate. At the commencement of what was to have been a 5-day trial the parties advised that they had agreed to a settlement. The agreement was that the Public Trustee would be appointed as the administrator. This was an outcome that had been sought by the first and second defendant and supported by the third defendant. The only issue that remained in contention between the parties was as to costs.
Each of the defendants sought that the plaintiff pay their costs, either in whole or part on an indemnity basis. The plaintiff sought orders that a significant portion of his costs be paid by the defendants, in part on an indemnity basis. The parties filed affidavits and made submissions both in writing and orally in support of their claims.
The appointment of the Public Trustee was not sought by any party prior…

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: [2021] WASC 227
Decision Date: 13 July 2021

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Grove v Kenworthy-Groen involved a dispute regarding the appointment of an administrator to a deceased estate. The matter was settled by the appointment of the Public Trustee as the administrator of the estate, and the plaintiff sought indemnity costs against the defendants for the proceedings. The court was required to determine whether the defendants were successful parties, and if so, to what extent they were entitled to indemnity costs.

The central legal issue before the court was whether the defendants, who had applied for the appointment of an administrator to the estate, were successful parties within the meaning of section 1096(2) of the Family Law Act 1975. If they were deemed successful parties, the court also had to consider the extent to which they were entitled to indemnity costs. The defendants argued they were successful parties because their application for the appointment of the Public Trustee as administrator was successful, and therefore, they were entitled to indemnity costs. The plaintiff contested this, arguing that the defendants had not achieved their desired outcome, as the Public Trustee was appointed instead of the defendant's preferred nominee.

The court found that the defendants were successful parties because the outcome they sought, the appointment of an administrator to the estate, had been achieved. The appointment of the Public Trustee as the administrator fulfilled the primary objective of the proceedings, and the court held that the defendants' application had been successful. However, the court also found that the defendants were not entirely successful in their application, as their preferred nominee was not appointed. Consequently, the court ordered that the defendants were entitled to a proportion of the indemnity costs, reflecting their partial success. The court calculated that the defendants were entitled to 60% of the costs, as the Public Trustee's appointment was the primary objective of the proceedings, and the defendants had achieved this outcome.

The court's final orders were that the defendants were successful parties to the extent of 60% and were entitled to 60% of the indemnity costs incurred in the proceedings. The plaintiff was ordered to pay the defendants 60% of the costs associated with the application for the appointment of the administrator.

Orders