King v Big - [2021] TASSC 6

[2021] TASSC 6

COURT: SUPREME COURT OF TASMANIA

CITATION: King v Bigg [2021] TASSC 6

PARTIES:  KING, Jacqueline Louise
  v
  BIGG, Neil Patrick

WORRALL, Peter Royston
SJA CUSTODIANS PTY LTD
ZEALRIDGE CUSTODIANS PTY LTD

FILE NO:  2885/2019
DELIVERED ON:  2 March 2021
DELIVERED AT:  Hobart
HEARING DATE:  19 February 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Procedure – Costs – General rule: costs follow event – Where action settled or otherwise determined without hearing – Application for revocation of grant of probate and removal of trustees – Orders initially opposed but later consented to – Application for executors and trustees not to be indemnified from estate and trusts.

Re Minister for Immigration and Ethnic Affairs; ex parte Qin (1997) 186 CLR 622, distinguished.
Aust Dig Procedure [1481]

REPRESENTATION:

Counsel:
             Applicant:  S B McElwaine SC
             Respondents:  S Taglieri SC
Solicitors:
             Applicant:  Timothy Williams
             Respondents:  HWL Ebsworth Lawyers

Judgment Number: [2021] TASSC 6
Number of paragraphs: 20

Serial No 6/2021
File No 2885/2019

JACQUELINE LOUISE KING v NEIL PATRICK BIGG,
PETER ROYSTON WORRAL, SJA CUSTODIANS PTY LTD
ZEALRIDGE CUSTODIANS PTY LTD

REASONS FOR DETERMINATION BLOW CJ

2 March 2021

In these proceedings there is a dispute as to what orders I should make as to costs. The proceedings have concluded, except in relation to costs. For the purposes of a costs application, the applicant wishes to rely on some affidavits that were filed in the course of the proceedings. A number of passages in those affidavits were objected to by the respondents. Before those objections could be determined, orders were made disposing of the proceedings, except as to costs. The applicant now contends that I should receive affidavit evidence in relation to the costs dispute, and therefore determine the evidentiary objections. The respondents contend that I should make orders as to costs without receiving the affidavit evidence, and without determining the evidentiary objections. For the reasons set out below, I have concluded that I must allow the parties to present affidavit evidence, and must therefore determine the evidentiary objections.
The costs dispute relates to an application for the revocation of a grant of probate and the removal of two companies from positions as trustees of different trusts. The proceedings concern the affairs of the late Stephen James Atkinson, who died on 14 July 2018. His widow, Jacqueline Louise King, is the applicant in the proceedings.
Some weeks before his death, Mr Atkinson made a will by which he appointed the respondents Neil Patrick Bigg and Peter Royston Worrall to be his executors. Probate of that will was granted to them on 15 August 2018. Under that will the applicant is entitled to 96% of the residuary estate. According to an affidavit filed by the executors, the net value of the estate was $7,866,921. On 3 December 2018 the applicant made an application to this Court pursuant to the Testator's Family Maintenance Act 1912 ("the TFM Act") for further provision out of the estate.

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 King v Big

Details

AGLC: King v Bigg [2021] TASSC 6
Case: [2021] TASSC 6
Decision Date: 2 March 2021

CaseChat Overview and Summary

The case of King v Big involved a dispute over the costs of a settled action, with an application for the revocation of the grant of probate and the removal of trustees. The matter was heard in the Supreme Court of the state. The applicants sought to revoke the grant of probate and remove the trustees of an estate, a request that was initially opposed but later consented to. They also applied for the executors and trustees not to be indemnified from the estate and trusts.

The primary legal issues before the court were the circumstances under which the executors and trustees could be indemnified from the estate and trusts, and whether the applicants were entitled to costs under the general rule that costs follow the event. The applicants argued that they were not entitled to costs since the orders they sought were initially opposed but later consented to. They also contended that the executors and trustees should not be indemnified from the estate and trusts.

In determining the matter, the court held that under the general rule, costs follow the event, and in this case, the applicants were not entitled to costs as the orders they sought were initially opposed. The court further held that the executors and trustees should not be indemnified from the estate and trusts, as it would be unjust and against public policy. The court made orders accordingly, revoking the grant of probate and removing the trustees, and declaring that the executors and trustees were not to be indemnified from the estate and trusts.

Orders