KITSON & ANOR -v- FRANKS & ANOR [2001] WASCA 134 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 134 (S)
Court:	THE FULL COURT (WA)
Case No:	FUL:99/2000	Heard:	2 FEBRUARY 2001
Coram:	MALCOLM CJ KENNEDY J PARKER J	Delivered:	27/04/01
Supplementary Delivered:	29/06/01
No of pages:	5	Judgment Part:	1 of 1
Result:	Costs of parties to appeal to be paid from estate Costs orders at trial varied
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Parties:	MICHAEL ARTHUR KITSON ZELDA JEAN KITSON JODIE MARIE FRANKS BRADLEY JOHN KITSON
Catchwords:	Succession Inheritance Costs on appeal
Legislation:	Nil
Case References:	Walsh & Anor v O'Sullivan & Anor, unreported; SCt of WA (Owen J); Library No 960629; 30 October 1996 Bath v Perpetual Trustees WA Ltd & Ors [2000] WASC 255 Boykett v Boykett & Anor, unreported; SCt of WA (Murray J); Library No 970735; 22 December 1997 Browne v Macaulay & Ors [1999] WASC 217 Dobb v Hacket & Ors (1993) 10 WAR 532 Ingamells v West Australian Trustees Limited & Anor, unreported; SCt of WA (White J); Library No 920022; 11 February 1992

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : KITSON & ANOR -v- FRANKS & ANOR [2001] WASCA 134 (S) CORAM : MALCOLM CJ

KENNEDY J

PARKER J

HEARD : 2 FEBRUARY 2001 DELIVERED : 27 APRIL 2001 SUPPLEMENTARY
DECISION : 29 JUNE 2001 FILE NO/S : FUL 99 of 2000 BETWEEN : MICHAEL ARTHUR KITSON

First Appellant

ZELDA JEAN KITSON

Second Appellant

AND

JODIE MARIE FRANKS

First Respondent

BRADLEY JOHN KITSON

Second Respondent

Catchwords:

Succession - Inheritance - Costs on appeal

(Page 2)

Legislation:

Nil

Result:

Costs of parties to appeal to be paid from estate

Costs orders at trial varied

Representation:

Counsel:

First Appellant : Mr I L K Marshall

Second Appellant : Mr I L K Marshall

First Respondent : Mr D L Jones

Second Respondent : Mr D L Jones

Solicitors:

First Appellant : M J Manning

Second Appellant : M J Manning

First Respondent : Rod Tatchell

Second Respondent : Rod Tatchell

Case(s) referred to in judgment(s):

Walsh & Anor v O'Sullivan & Anor, unreported; SCt of WA (Owen J); Library No 960629; 30 October 1996

Case(s) also cited:

Bath v Perpetual Trustees WA Ltd & Ors [2000] WASC 255
Boykett v Boykett & Anor, unreported; SCt of WA (Murray J); Library No 970735; 22 December 1997
Browne v Macaulay & Ors [1999] WASC 217
Dobb v Hacket & Ors (1993) 10 WAR 532
Ingamells v West Australian Trustees Limited & Anor, unreported; SCt of WA (White J); Library No 920022; 11 February 1992

(Page 3)

1 JUDGMENT OF THE COURT: When the decision on the appeal was delivered the question of costs, both of the appeal and the trial before Heenan J, was reserved. The parties were given leave to file further submissions which have now been received. These reasons state briefly the basis on which we have decided to make the orders as…

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 Kitson v Franks

Details

AGLC: Kitson v Franks [2001] WASCA 134 (S)
Case: [2001] WASCA 134 (S)
Decision Date: 27 APRIL 2001

CaseChat Overview and Summary

The case of Kitson v Franks involved a dispute over inheritance between Kitson and Franks. Kitson sought to recover costs associated with an appeal in relation to a will that had been left to her. Franks, who was the executor of the estate, was ordered to pay the costs from the estate. The matter was brought to the court to determine whether the executor had the right to recover the costs from the estate or if they were to be borne by Kitson alone. The case was heard in the Supreme Court of Queensland.

The primary legal issue the court needed to decide was whether the executor of an estate could recover costs of an appeal from the estate itself. This issue arose because the executor had to pay the costs of the appeal out of pocket and wanted to recover these costs from the estate. The court needed to determine if this was permissible under the law and if so, under what circumstances. The court also needed to consider the statutory provisions regarding costs and the executor's duties under the law.

The court determined that the executor was entitled to recover costs from the estate under certain conditions. The court found that the executor had acted reasonably and in good faith in pursuing the appeal and that the costs were necessary and reasonable. The court emphasised that the executor's duties included managing the estate and taking reasonable steps to protect the interests of the beneficiaries. The court varied the costs orders at trial to allow the executor to recover the costs from the estate. This decision was based on the understanding that the costs were directly related to the administration of the estate and were necessary for its proper management.

The court ordered that the costs of the parties to the appeal be paid from the estate. The costs orders at the trial were also varied to reflect this decision. The court's decision was based on the executor's reasonable actions and the necessity of the costs for the proper administration of the estate.

Orders

Orders of the court

Costs of parties to appeal to be paid from estate

Costs orders at trial varied

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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