Jeffery Charles Ford v Charles D'Arcy WENTWORTH (No 2)

[2011] ACTSC 182

JEFFERY CHARLES FORD v CHARLES D’ARCY WENTWORTH (NO 2)
[2011] ACTSC 182 (11 November 2011)

No. SC 773 of 2010
Judge:             Besanko J
Supreme Court of the ACT

Date:              11 November 2011

IN THE SUPREME COURT OF THE     )
  )          No. SC 773 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:JEFFERY CHARLES FORD & MICHAEL JAMES PHELPS AS EXECUTORS OF THE WILL OF THE LATE ALICE ISOBEL WENTWORTH (DECEASED)

Plaintiff

AND:CHARLES D’ARCY WENTWORTH

First Defendant

KATHY GAYE KINNANE AS GUARDIAN OF EMMA KELLY WENTWORTH, LACHLAN HUGH WENTWORTH, CHLOE KATE WENTWORTH & SAM CHARLES RAY WENTWORTH

Second Defendant

JUDITH FRANCES VILLANOVA
Third Defendant

WENDY ALICE AUSTIN
Fourth Defendant

DAVID LESLIE WENTWORTH
Fifth Defendant

ORDER

Judge:  Besanko J
Date:  11 November 2011
Place:  Adelaide via video link with Canberra

THE COURT ORDERS THAT:

1. The plaintiffs’ costs of the application be paid out of the estate on a solicitor and client basis.

1. The first defendant be paid 50 per cent of his party and party costs of the application out of the estate.

1. The second defendant’s costs of the application be paid out of the estate on a solicitor and client basis.

1. The third to fifth defendants’ costs of the application be paid out of the estate on a party and party basis.

INTRODUCTION

1. I delivered reasons and made orders in this action on 28 September 2011: Jeffery Charles Ford v Charles D’Arcy Wentworth [2011] ACTSC 162.

1. The second order I made on that day was as follows:

If the parties agree costs, then the plaintiffs are to lodge an agreed minute of the proposed orders. If the parties do not agree costs, then each party is at liberty to lodge a brief written submission as to costs within 21 days.

1. The parties have agreed some aspects of the orders as to costs and not others. All parties are agreed that the plaintiffs’ costs of the application should be paid out of the estate on a solicitor and client basis and that the third to fifth defendants should have their costs of the application paid out of the estate on a party and party basis. All parties except for the first defendant are agreed that the second defendant’s costs of the application should be paid out of the estate on a solicitor and client basis. The first defendant contends that they should be so paid but on a party and party basis. I see no reason why the second defendant’s costs of the application should not be paid out of the estate on a solicitor and client basis.

1. The area of contention is the first defendant’s costs of the application. The plaintiffs contend that the first defendant should bear his own costs of the application. The first defendant contends that his costs should be paid out of the estate.

1. In Re Buckton; Buckton v Buckton (1907) 2 Ch 406, Kekewich J identified three classes of case for the purposes of considering the costs of parties to a construction summons. The first defendant contended that this case falls within the first class identified by Kekewich J at 414.

In a large proportion of the summonses adjourned into court for argument the applicants are trustees of a will or settlement who ask the Court to construe the instrument of trust for their guidance, and in order to ascertain the interests of the beneficiaries, or else ask to have some question determined which has arisen in the administration of the trusts. In cases of this character I regard the costs of all parties as necessarily incurred for the benefit of the estate, and direct them to be taxed as between solicitor and client and paid out of the estate.

See also in Re Jones Deceased [1963] SASR 280 per Chamberlain J.

1. The plaintiffs identified two circumstances which they submit make an order that the first defendant have his costs out of the estate inappropriate. Those two circumstances are the fact that the first defendant raised a number of irrelevant issues at the hearing of the construction summons and the fact that the first defendant does not have a direct interest in the determination of the construction summons.

1. There is merit in both points made by the plaintiffs. As to the first point, I refer to paragraphs 17-25 of my reasons and as to the second point, I refer to paragraph 26 of my reasons. On the other hand, the first defendant was joined as a party to the application and in my opinion he is entitled to at least some of his costs of the application. In all the circumstances, I think the appropriate order is that the first defendant be paid 50 per cent of his party and party costs out of the estate.

1. I will make orders which reflect these conclusions.

   I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

   
   Associate:    

   Date:     11 November 2011

Counsel for the plaintiff:  Mr N J Beaumont
Solicitor for the plaintiff:  Phelps Reid
Counsel for the First Defendant:                   Mr D A Hassall          
Solicitor for the First defendant:                   Just Law - Erindale
Counsel for the Second Defendant:              Mr W Sharwood
Solicitor for the Second Defendant:              Elrington Boardman Allport

Counsel for the Third, Fourth and

Fifth Defendants:  Ms L Kennedy

Solicitor for the Third, Fourth and                

Fifth Defendants:  Symons Phillips Lawyers
Date of hearing:  28 September 2011

Dates of written submissions as to costs:      Plaintiffs – 19 October 2011
  First Defendant – 19 October 2011

Date of judgment:  11 November 2011