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King v Bigg (No 2)

King v Bigg (No 2)

Case [2022] TASSC 7 15 February 2022

Costs

Specific Performance

Civil Litigation & Procedure

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[2022] TASSC 7

COURT: SUPREME COURT OF TASMANIA

CITATION: King v Bigg (No 2) [2022] TASSC 7

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:  15 February 2022
DELIVERED AT:  Hobart
HEARING DATES:  20-22 July, 30 August 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Procedure – Costs – General rule: costs follow event – Where actions settled or otherwise determined without hearing – Application for revocation of grant of probate and removal of trustees – Orders initially opposed but later not opposed – Application for former executors and former trustees to pay beneficiary's costs and not to be indemnified from estate and trust assets.

Aust Dig Procedure [1481]

REPRESENTATION:

Counsel:
             Applicant:  S B McElwaine SC
             Respondents:  K E Read SC, J Bloomfield
Solicitors:
             Applicant:  Timothy Williams
             Respondents:  HWL Ebsworth Lawyers

Judgment Number: [2022] TASSC 7
Number of paragraphs: 106

Serial No 7/2022
File No 2885/2019

JACQUELINE LOUISE KING v NEIL PATRICK BIGG,
PETER ROYSTON WORRALL, SJA CUSTODIANS PTY LTD
and ZEALRIDGE CUSTODIANS PTY LTD (NO 2)

REASONS FOR JUDGMENT BLOW CJ

15 February 2022

This application relates to the costs of an application that was finalised without a hearing. The proceedings concerned the affairs of the late Stephen James Atkinson, who took his life on 14 or 15 July 2018. Some weeks before his death, he 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. His widow, Jacqueline Louise King, is the principal beneficiary under that will. She is the applicant in these proceedings. On 5 November 2018 she filed an originating application seeking the revocation of the grant of probate, the appointment of someone else to administer the estate, and the removal of the other respondents, SJA Custodians Pty Ltd and Zealridge Custodians Pty Ltd, as trustees of two family trusts that had been established by her husband ("the removal application").
In late August 2020 the respondents decided that they would no longer oppose the orders sought by the applicant for the revocation of the grant of probate and the removal of the trustees. On 2 September 2020 I made orders removing and replacing the various respondents as executors and trustees.
The applicant is now seeking the following orders as to costs:
"(i)that the respondents pay the applicant's costs of and incidental to this proceeding on a party and party basis and that they not be indemnified for those costs out of the assets of the estate of Stephen Atkinson, of the SJA Trust and or the S Atkinson Family Trust; and
(ii)that the respondents bear their own costs of this proceeding personally and not be indemnified for those costs out of the assets of the estate of Stephen Atkinson, the SJA Trust or the S Atkinson Family Trust."
The S Atkinson Family…

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 Bigg (No 2)

Details

AGLC: King v Bigg (No 2) [2022] TASSC 7
Case: [2022] TASSC 7
Decision Date: 15 February 2022

CaseChat Overview and Summary

The matter of King v Bigg (No 2) involved the dispute between the former executors and trustees of a will, and a beneficiary, regarding costs incurred in the context of an application to revoke a grant of probate and remove trustees. The case was heard in the Supreme Court of New South Wales. The primary issue for the court was to determine whether the former executors and trustees should be liable for the costs of the beneficiary's application, and whether they could be indemnified from the estate and trust assets.

The court examined the principle that costs generally follow the event, particularly in circumstances where actions are settled or otherwise determined without a hearing. The court needed to consider whether the initial opposition to the application by the former executors and trustees, followed by their decision not to oppose, affected the outcome regarding costs. The court also had to determine if the former executors and trustees could be indemnified from the estate and trust assets for the costs.

The court concluded that the former executors and trustees should bear the costs of the beneficiary's application. Despite the initial opposition followed by the decision not to oppose, the court found that the principle that costs generally follow the event applied. Furthermore, the court ruled that the former executors and trustees could not be indemnified from the estate and trust assets for the costs, as it would not be equitable to burden the estate and trust with these costs.

The court ordered the former executors and trustees to pay the beneficiary's costs of the application and confirmed that they were not to be indemnified from the estate and trust assets. This decision upheld the principle that costs follow the event and ensured that the estate and trust were not unjustly burdened.

Orders