Hawkins v Barkley-Brown [No 2]

The case of Hawkins v Barkley-Brown [No 2] was heard in the Supreme Court of New South Wales. The dispute arose from a review of a registrar's decision to award a commission to the plaintiff, who was the executor of a deceased estate. The first defendant, Barkley-Brown, sought to challenge the registrar's decision on the grounds of costs. The case required the court to determine whether the first defendant's motion for review of the registrar's decision should be upheld and, if so, what the appropriate costs order should be.

The legal issues before the court included whether the first defendant's conduct warranted an indemnity costs order and whether the principle of costs following the event should apply. The court also had to consider the fairness of allowing the first defendant's late application for commission to proceed. The court found that the first defendant's motion for review failed because their conduct was not deliberately delinquent. The court emphasised that costs should generally follow the event, and in this case, it was not appropriate to award costs on an indemnity basis against the first defendant. The plaintiff, as the executor, was entitled to recover costs from the estate unless the first defendant was able to pay them directly.

The court ruled that the first defendant should not be granted costs against the plaintiff to the extent that the plaintiff's costs are not recovered on a party/party basis from the first defendant. Instead, the plaintiff should be indemnified from the estate for any costs not recovered from the first defendant. The court also determined that no costs order should be made in favour of the first defendant. Interest on the commission awarded would accrue from the time of the registrar's orders on 15 April 2009. The plaintiff was entitled to deduct from any estate distributions to the first defendant the amount of any assessed costs award in favour of the estate. The court concluded that it would be unfair to allow the first defendant's late application for commission to proceed.