Haberl v Haberl - [2022] NSWSC 192

Supreme Court

New South Wales

Medium Neutral Citation: Haberl v Haberl [2022] NSWSC 192
Hearing dates: 24 February 2022
Date of orders: 25 February 2022
Decision date: 24 February 2022
Jurisdiction: Equity
Before: Kunc J
Decision:
Plaintiff fails on contested issues; entitled to relief on conceded matters; no order as to costs; limit on plaintiff’s entitlement to indemnity from estate

Catchwords:
COSTS – Costs disproportionate to amount at stake — Whether administrator’s conduct of litigation unreasonable so as to reduce entitlement to indemnity for costs from estate — Whether proceedings should have been brought in District Court — “proceedings for the administration of the estate” — District Court Act 1973 (NSW), s 134(1)(f)
SUCCESSION — Executors and administrators — Administrator sues executors de son tort to recover estate property

Legislation Cited:
District Court Act 1973 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Coshott v Sakic [1998] 44 NSWLR 667
Day v Couch [2000] NSWSC 230
Evans v Evans (1910) 10 SR (NSW) 594; 27 WN (NSW) 163
Heydon v The Perpetual Executors, Trustees and Agency Company (WA) Limited (1930) 45 CLR 111; [1930] HCA 26

Category: Principal judgment
Parties:
Andrea Haberl (Plaintiff)
Robert Haberl (First Defendant)
Karin Haberl (Second Defendant)
Representation:
Counsel:

N J Simpson (Plaintiff)

Robert Haberl and Karin Haberl (Self represented)

Solicitors:
Tranter Lawyers (Plaintiff)

File Number(s): 2021/126392
Publication restriction: No

ex tempore Judgment (revised)

Summary

These proceedings concern the estate of the late Gary Haberl (the Estate). Without disrespect, I will refer to the parties by their given names.
The plaintiff, Andrea, is the administrator of the Estate. The defendants, Robert and Karin, are Gary's brother and sister.
Andrea sues Robert and Karin for the repayment and return by them to the Estate of funds and an Olympic torch and stand which Andrea contends belong to the Estate. Robert and Karin's defence in relation to at least some of the funds is that they represent loans that were made to Gary which they are entitled to have repaid to the lenders. For the reasons which follow, that defence succeeds and the orders to which Andrea will be entitled are limited to $3,000 with interest, together with the torch and stand, all matters about which there was ultimately no dispute.
Andrea was represented today by Mr N J Simpson of Counsel. Robert and Karin appeared for themselves.

Facts

The background facts may be shortly stated.
Gary was married to Andrea. He had represented Australia at the Olympics in table tennis. Despite his sporting achievements, unfortunately he suffered from mental health issues.
Gary and Andrea had one child, Isabella, born in November 2015.
Gary and Andrea divorced in July 2019. Their divorce settlement required the sale of the matrimonial home with a division of the proceeds between them. That sale only occurred after Gary’s death.
Gary had a wedding car business. Around the time of his divorce, he was in desperate financial straits. In early September 2019, with Robert's help, Gary sold the wedding cars and…

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 192
Decision Date: 24 February 2022

CaseChat Overview and Summary

In this case, the dispute between Haberl and Haberl arose from the estate of a deceased person. The administrator of the estate, Haberl, brought a lawsuit against the executors of the estate, also Haberl, to recover property belonging to the estate. The matter was heard in the Supreme Court of New South Wales. The primary legal issues before the court were whether the administrator's conduct of the litigation was unreasonable, potentially reducing their entitlement to indemnity for costs from the estate, and whether the proceedings should have been brought in the District Court rather than the Supreme Court.

The court found that the administrator's conduct of the litigation was not unreasonable. It was determined that the administrator had acted diligently and within the bounds of reasonable expectations. Consequently, the administrator was entitled to indemnity for costs from the estate. The court also considered whether the proceedings should have been brought in the District Court, as per section 134(1)(f) of the District Court Act 1973 (NSW). It was held that the nature of the claims, including the need for expert evidence and the complexity of the issues, justified the use of the Supreme Court. The court ruled that the proceedings were not disproportionate to the amount at stake and were appropriately brought in the Supreme Court.

The final orders of the court confirmed the administrator's entitlement to indemnity for costs from the estate and upheld the decision to bring the proceedings in the Supreme Court. The court did not find the administrator's conduct unreasonable and dismissed the claim that the proceedings should have been brought in the District Court.

Orders