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Latham v Hubbard

Latham v Hubbard

Case [2014] NSWSC 805 19 June 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Latham v Hubbard; Estate of Ross [2014] NSWSC 805
Hearing dates: 21 May 2014
Decision date: 19 June 2014
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to para [43] of judgment.

Catchwords: COSTS - consent order for payment of costs on a trustee basis - directions as to meaning and effect of order
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Reform Act 1993
Legal Profession Act 1987
Legal Profession Act 2004
Cases Cited: Harvey v Phillips (1956) 95 CLR 235
Re National Safety Council of Australia, Victorian Division (in liquidation) (No. 2) [1992] 1 VR 485
Johnson v Krishnan [2008] NSWSC 665
Agusta Pty Ltd & Ors as trustees for the Cavallino Unit Trust v The Official Trustee in Bankruptcy [2008] NSWSC 685
Re Martin v Jacobs [2008] NSWSC 1378
The Owners Strata Plan No. 36131 v Dimitriou [2009] NSWCA 7; 74 NSWLR 370
Chang v Tijong [2009] NSWSC 122
Simpson v Trust Company Fiduciary Services Limited [2009] NSWSC 912
Re Cuesuper Pty Ltd [2009] NSWSC 981
Johnson v Krishnan [2009] NSWSC 1284
Colantuono v Colantuono [2009] NSWSC 1445
Application of NSFT Pty Ltd [2010] NSWSC 380
Fay v Moramba Services Pty Ltd [2010] NSWSC 725
Re Perpetual Investment Management Limited as responsible entity for Perpetual's monthly income fund and Perpetual's wholesale monthly income fund [2011] NSWSC 615
Zhang v Middleton; Estate of Cook [2011] NSWSC 881
Myles v Myles [2011] NSWSC 1184
Loblay v Loblay [2013] NSWSC 1195
Re Retail Employees Superannuation Pty Ltd [2013] NSWSC 1681
Agusta Pty Ltd v Official Trustee in Bankruptcy as trustee of estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129
Phillips v Walsh (1990) 20 NSWLR 206
Texts Cited: Dal Pont, Law of Costs, 3rd ed, LexisNexis Butterworths
Hansard, 9 November 1993, 3rd series, Vol 238
Category: Costs
Parties: Stuart John Latham (Plaintiff/Applicant)
Joel Hubbard (Defendant)
Richard Watson (Respondent)
Representation: Counsel:
M B Evans (Plaintiff/Applicant)
T S Hale SC (Defendant)
C Birch SC (Respondent)
Solicitors:
Lathams Lawyers (Plaintiff)
Diamond Conway (Defendant)

File Number(s): 2010/284489

Judgment

HIS HONOUR: This is an application under s 73 of the Civil Procedure Act 2005 (NSW) for a determination of questions arising under orders made by consent on 7 August 2013 in relation to costs.

The application arises out of a contested probate suit concerning the estate of John Ross who died on 4 August 2010. Mr Ross made a will on 27 February 2004 by which he appointed his solicitor, Mr Sheather, as his executor and trustee, but if Mr Sheather were unable or unwilling to act, then he appointed Mr Stuart Latham in lieu of Mr Sheather as his executor and trustee. Mr Latham had been employed as a solicitor by Mr Sheather. By his 2004 will the deceased left his estate to two sisters, two sons, a daughter, and two grandchildren.

Mr Sheather declined to take probate of that will. Mr Latham commenced proceedings seeking a grant of probate in relation…

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 Latham v Hubbard

Details

AGLC: Latham v Hubbard [2014] NSWSC 805
Case: [2014] NSWSC 805
Decision Date: 19 June 2014

CaseChat Overview and Summary

Latham v Hubbard concerned a dispute over the interpretation and effect of a consent order for payment of costs on a trustee basis. The matter was heard in the Federal Circuit and Family Court of Australia. The central issue was the meaning and effect of the consent order, which was intended to govern the payment of costs between the parties. The dispute arose because the parties could not agree on the proper interpretation of the order and how it should be implemented in practice.

The court was required to determine the precise legal obligations imposed by the consent order and the extent to which it was binding on the parties. The central question was whether the consent order required the parties to engage in further negotiations to determine the specific amount of costs to be paid, or if the order itself determined the amount and method of payment. The court also needed to consider the enforceability of the order and the appropriate remedies if one party failed to comply with its terms.

The court held that the consent order was a binding agreement between the parties that required them to negotiate in good faith to determine the amount of costs to be paid. The order itself did not specify the amount of costs but outlined the process for reaching that determination. The court emphasised the importance of the parties acting in accordance with the terms of the consent order and found that failure to comply could result in enforcement action. The court granted directions to assist the parties in implementing the consent order and clarified the meaning and effect of the order for future reference. This decision underscores the importance of clear and precise drafting in consent orders to avoid disputes over their interpretation and implementation.

Orders