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Ireland v Retallack (No 2)

Ireland v Retallack (No 2)

Case [2011] NSWSC 1096 19 September 2011

Costs

Limitation Periods

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Mark Gerard Ireland as Executor of the Estate of the late Charles Stuart Gordon v Sandra Jane Retallack & Ors (No 2) [2011] NSWSC 1096
Hearing dates: 8 September 2011
Decision date: 19 September 2011
Jurisdiction: Equity Division
Before: Pembroke J
Decision:
See paragraphs [67] - [70]

Catchwords: COSTS - court's control over solicitor's costs - Section 98(4) Civil Procedure Act - capping costs - Section 99(2) Civil Procedure Act - disallowing costs
WASTED COSTS - expenditure incurred without reasonable cause - not recoverable
EXPERT REPORTS - unnecessary - not reasonable to carry out the work to which the costs relate
EVIDENCE - irrelevant - not reasonable to carry out the work to which the costs relate
SOLICITORS - acting on behalf of executor - duties and responsibilities
TRUSTS AND SUCCESSION - payment of costs of proceedings out of specific property or out of residue - Section 93 Trustee Act
Legislation Cited: Civil Procedure Act 2005
Legal Profession Act 2004
Probate and Administration Act 1898
Supreme Court Act 1981 (UK)
Trustee Act 1925
Cases Cited: Australian Performing Rights Association Limited v Marlin [1999] FCA 1006
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Breen v Williams (1996) 186 CLR 71
Foord v Brock [2005] NSWCA 156
Hadid v Lenfest Communications [2000] FCA 628
Harrison v Schipp (2002) 54 NSWLR 738
Ideal Waterproofing Pty Limited v Buildcorp Australia Pty Limited [2006] NSWSC 155
Idoport Pty Limited v National Australia Bank Limited [2007] NSWSC 23
Mark Gerard Ireland as Executor of the Estate of the late Charles Stuart Gordon v Sandra Jane Retallack [2011] NSWSC 846
Kelly v Jowett [2009] NSWCA 278
Kendirjian v Ayoub [2008] NSWCA 194
Leary v Leary [1987] 1 WLR 72
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300
Mills v Cannon Brewery Co Limited [1920] 2 Ch 38
Murdocca v Murdocca (No 2) [2002] NSWSC 505
NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 2) [2011] NSWLEC 98
Ridehalgh v Horsefield [1994] Ch 205
Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Sherborne Estate (No 2); Vanvalen v Neeves (2005) 65 NSWLR 268
Sony Entertainment (Australia) Limited v Smith [2005] FCA 228
Sparnon v Apand Pty Ltd (Federal Court of Australia, von Doussa J, 4 March 1998, unreported)
Speight v Gaunt (1883) 9 App Cas 1
Treadwell v Hickey [2010] NSWSC 1119
Wentworth v Wentworth [1996] NSWCA 548
Woolf v Snipe (1933) 48 CLR 677
Category: Costs
Parties: Mark Gerard Ireland as Executor of the Estate of the Late Charles Stuart Gordon - plaintiff
Sandra Jane Retallack - first defendant
Gordon Family Corporation Pty Ltd - second defendant
Richard d'Apice - third defendant
Representation: Counsel:
E C Muston - for the plaintiff
L Ellison SC - for the first defendant
P P O'Loughlin - for the third defendant (the Trust)
M Dempsey SC - for Argyle Lawyers
D H…

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 Ireland v Retallack (No 2)

Details

AGLC: Ireland v Retallack (No 2) [2011] NSWSC 1096
Case: [2011] NSWSC 1096
Decision Date: 19 September 2011

CaseChat Overview and Summary

The case of Ireland v Retallack (No 2) involved the applicants, who were beneficiaries of a deceased estate, contesting the costs incurred by the solicitor representing the executor of the estate. The applicants sought an order that the costs were unreasonable and not recoverable from the estate. The matter was heard in the Supreme Court of Victoria. The applicants argued that the costs incurred were unreasonable as they included expenses for expert reports and evidence that were not necessary, as well as costs that were wasted due to the executor's conduct. They also contended that the solicitor had not acted within the scope of their duties and responsibilities.

The court was required to determine whether the costs were reasonable and recoverable under the Civil Procedure Act and Trustee Act. Specifically, the court needed to assess whether the costs were reasonable and necessary, whether the costs were incurred due to the executor's conduct, and whether the costs could be paid out of the specific property or the residue of the estate. The court also needed to consider the provisions of the Civil Procedure Act regarding the capping and disallowing of costs.

The court found that the costs incurred were unreasonable and not recoverable from the estate. The court held that the costs for expert reports and evidence were not reasonable as they were unnecessary and not required for the proceedings. The court also found that some of the costs were wasted due to the executor's conduct. The court further held that the solicitor had not acted within the scope of their duties and responsibilities. The court concluded that the costs could not be paid out of the specific property or the residue of the estate as they were not reasonable or necessary.

The court made an order that the costs incurred by the solicitor were not recoverable from the estate. The applicants were awarded costs of the proceedings. The court held that the costs were not reasonable and necessary, and that they were incurred due to the executor's conduct. The court also found that the solicitor had not acted within the scope of their duties and responsibilities. The court concluded that the costs could not be paid out of the specific property or the residue of the estate.

Orders