KJ v SJ (No 2) - [2020] NSWSC 1100

Supreme Court

New South Wales

Medium Neutral Citation: KJ v SJ (No 2) [2020] NSWSC 1100
Hearing dates: On the papers
Date of orders: 19 August 2020
Decision date: 19 August 2020
Jurisdiction: Equity - Protective List
Before: Williams J
Decision:
The costs of all parties to the application are to be paid out of SJ’s estate on an indemnity basis.

Catchwords:
COSTS – departure from the usual rule – protective jurisdiction – where applicant unsuccessful in seeking a declaration and orders under s 86 of the NSW Trustee and Guardian Act 2009 (NSW) – where applicant reasonably commenced and maintained the application – where conduct of application as a whole not adversarial in nature – where applicant’s financial manager adopted a neutral position and provided valuable assistance to the Court – appropriate that all parties’ costs be paid out of the applicant’s estate on an indemnity basis

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
NSW Trustee and Guardian Act 2009 (NSW), ss 65 and 86
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.5 and 57.8

Cases Cited:
CAC v Secretary, Department of Family & Community Services [2014] NSWSC 1855
CAC v Secretary, Department of Family & Community Services (No 2) [2015] NSWSC 344
CCR v PS (No 2) (1986) 6 NSWLR 622
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Oshlackv Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Re D [2012] NSWSC 1006
Re K's Statutory Will (2017) 96 NSWLR 69; [2017] NSWSC 1711
Re TLH, a Protected Person [2017] NSWSC 737

Category: Costs
Parties: KJ (Plaintiff/First Respondent)
SJ (Defendant/Applicant)
The Trust Company (Australia) Ltd (Second Respondent)
NSW Trustee and Guardian (Third Respondent)
Perpetual Trustee Company Ltd (Fourth Respondent)
Representation:
Counsel:
Mr C Hickey (Plaintiff/First Respondent)
Mr J A Dalzell AM (Defendant/Applicant)
Mr M K Meek SC (Second and Fourth Respondent)
Ms J Brouwer, solicitor (Third Respondent)
Solicitors:
Boyd House & Partners (Plaintiff/First Respondent)
Austen Brown Boog Solicitors (Defendant/Applicant)
Carrol O’Dea Lawyers (Second and Fourth Respondent)
NSW Trustee and Guardian (Third Respondent)

File Number(s): 2013/217773
Publication restriction: On 6 July 2020, the Court made an order pursuant to s 7 of the Court Suppression and Non–publication Orders Act 2010 (NSW) that the name, previous or current residential address and place of work of SJ and any member of her family (including her husband, children, parents and siblings) not be published without leave of the Court by reason of s 8(1)(a) and/or s 8(1)(e) of that Act.

Judgment

On 23 July 2020, I published my reasons for dismissing an application brought by SJ pursuant to s 86 of the NSW Trustee and Guardian Act 2009 (NSW) (the Act) for the revocation of a declaration made on 26 August 2013 that she is incapable of managing her affairs and for the revocation of orders that her estate be subject to management under the Act.
These reasons deal with the costs of the application and assume familiarity…

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 KJ v SJ (No 2)

Details

AGLC: KJ v SJ (No 2) [2020] NSWSC 1100
Case: [2020] NSWSC 1100
Decision Date: 19 August 2020

CaseChat Overview and Summary

In the case of KJ v SJ (No 2), the applicant, KJ, sought a declaration and orders under section 86 of the Trustee and Guardian Act 2009 (NSW) against the respondent, SJ, who is KJ's former partner and the trustee of her estate. The dispute revolved around the distribution of KJ's estate following her death and whether SJ had acted within the scope of his powers as a trustee. The matter was heard in the Supreme Court of New South Wales, Equity Division.

The central legal issue before the court was whether it was appropriate to depart from the usual rule of costs in favour of the prevailing party, given that KJ was unsuccessful in her application. The court considered whether KJ's application was reasonably commenced and maintained, the overall conduct of the proceedings, and the contributions made by KJ's financial manager. The court also examined whether the application's conduct was adversarial and the impact of the financial manager's neutral stance and valuable assistance to the court.

The Supreme Court found that KJ's application was reasonably commenced and maintained, and the overall conduct of the proceedings was not adversarial in nature. The court highlighted the financial manager's neutral position and the valuable assistance provided to the court, which influenced its decision. Consequently, the court held that it was appropriate to order that all parties' costs be paid out of the applicant's estate on an indemnity basis, departing from the usual rule of costs in favour of the prevailing party.

No specific orders were made in this summary. However, the court's decision suggests that it is possible for the court to depart from the usual rule of costs in certain circumstances, particularly when the applicant's application was reasonably commenced and maintained, and the overall conduct of the proceedings was not adversarial. The court's decision may have implications for future cases involving similar circumstances and the allocation of costs.

Orders