Jordan v Goldspring (No 3) - [2024] NSWSC 11

Supreme Court

New South Wales

Medium Neutral Citation: Jordan v Goldspring (No 3) [2024] NSWSC 11
Hearing dates: On the papers
Date of orders: 29 January 2024
Decision date: 29 January 2024
Jurisdiction: Equity
Before: Henry J
Decision:
See [102]

Catchwords:
CONTEMPT — Civil contempt — orders to be made following findings of breach of orders and civil contempt in relation to accounts — where executors filed and served accounts purportedly in response to orders — findings of breach and civil contempt in limited respects — where no punishment or monetary penalty sought — application for revocation of grant of probate based on contempt findings — where procedural issues raised — whether executors’ conduct required revocation of grant — grant of probate not revoked — orders made to remedy defaults
COSTS — whether costs should be awarded on indemnity basis — where applicants sought no punishment of contemnors — where applicants had mixed success — indemnity costs awarded subject to allowance for mixed outcome

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 14, 98
Supreme Court Rules 1970 (NSW) Pt 55, Div 3, rr 6, 13; Pt 78, r 48
Trustee Act 1925 (NSW), s 63
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.10, 42.25

Cases Cited:
Australian Securities and Investments Commission v Sigalla(No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62
Baird v Logan; Middleton Estate [2008] NSWSC 1029
Bates v Messner; Estate of Hardy [1967] 1 NSWR 638
Blacktown City Council v Nitopi [2019] NSWLEC 40
Canterbury City Council v Mihalopoulos (No 3) [2012] NSWLEC 72
Ford v Princehorn; Estate of Ford [2012] NSWSC 1165
Gibson v Buchanan [2004] NSWSC 957
Gorman v McGuire [2002] NSWSC 1089
InRe Beddoe;Downes v Cottam [1893] 1 Ch 547
Ivanna Ann-Marie Ferenc Stojic v Simon Stojic [2017] NSWSC 1235
Jewish National Fund of Australia Ltd v Bar-Mordecai [2020] NSWSC 384
Jordan v Goldspring (No 2) [2022] NSWSC 780
Khoury v Kirwan(No 6) [2021] VSC 682
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar (2008) 237 CLR 66; [2008] HCA 42
Mahaffy v Mahaffy [2018] NSWCA 42
Mavrideros v Mack (1998) 45 NSWLR 80; [1998] NSWCA 286
McIntyre v Perkes (1988) 15 NSWLR 417
Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13
NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97
Nowacki v Estate of Szymanski (Supreme Court (NSW), Probate Division, Windeyer J, 5 May 1995)
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Page v Rankine [2020] NSWSC 902
Profilio v Profilio [1999] NSWSC 657
Stubberfield v Brown [2010] NSWSC 536

Texts Cited:
G E Dal Pont, Law of Costs (2018, 4th ed, LexisNexis Australia)
Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice New South Wales (LexisNexis Butterworths)

Category: Consequential orders
Parties:
Katherine Mary Jordan (First Applicant/Plaintiff)
Rhonda Fay Thomas (Second Applicant/Plaintiff)
Lynette June Goldspring (Third Applicant/Plaintiff)
Peter Michael Goldspring (First Respondent/Defendant)
Mark Andrew Goldspring (Second…

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: [2024] NSWSC 11
Decision Date: 29 January 2024

CaseChat Overview and Summary

In the case of Jordan v Goldspring, the dispute involved the executors of an estate, who were found in breach of certain orders and in civil contempt. The matter was heard in the Supreme Court of Victoria. The applicants, who were beneficiaries of the estate, sought the revocation of the grant of probate and various orders to remedy the defaults of the executors, following findings of contempt and breaches of orders. The executors had filed and served accounts in response to the orders but were found to have breached those orders and acted in contempt in limited respects. The applicants did not seek punishment or a monetary penalty but sought to have the grant of probate revoked and for the executors' conduct to be addressed.

The court was required to determine whether the executors' conduct warranted the revocation of the grant of probate and what orders, if any, should be made to remedy the defaults. The applicants argued that the executors' conduct was so egregious that it justified the revocation of the grant of probate. The executors, on the other hand, contended that their actions did not warrant such a severe penalty and that the applicants' success was mixed. The court considered the nature of the contempt, the executors' conduct, and the applicants' success in their claims.

The court held that while the executors' conduct was in breach of orders and amounted to civil contempt, it did not warrant the revocation of the grant of probate. The court found that the executors' actions were not sufficiently egregious to justify such a severe penalty, and the applicants had not sought punishment. Instead, the court made orders to remedy the defaults, ensuring that the estate was properly administered. Additionally, the court awarded indemnity costs to the applicants, subject to a reduction to account for their mixed success in the proceedings. The executors were required to comply with the orders made by the court to address the defaults identified.

Orders