Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Ludwig v Jeffrey (No. 5) [2022] NSWSC 497 Hearing dates: 4 March 2022 Date of orders: 27 April 2022 Decision date: 27 April 2022 Jurisdiction: Equity Before: Slattery J Decision: Costs orders made.
Catchwords: COSTS – trusts and trustees – indemnity of trustee – series of judgments given, determining the scope of the indemnity of a trustee – the parties contest the quantification of the indemnity – Court considers gross sum costs orders under Civil Procedure Act 2005, s 98(4)(c) – what final costs order should be made.
Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919, s 163B
Powers of Attorney Act 1971 (UK), s 10
Trustee Act1925, s 100A
Cases Cited: Bechara (t/as Bechara and Company) v Bates [2016] NSWCA 294
Belfield v Belfield (2012) 83 NSWLR 189
Harrison v Schipp (2002) 54 NSWLR 738
Ludwig and Jeffrey [2019] NSWSC 1550
Ludwig v Jeffrey (No. 2) [2020] NSWSC 1677
Ludwig v Jeffrey (No. 3) [2021] NSWSC 23
Ludwig v Jeffrey (No 4) [2021] NSWCA 256
Pilkington v Inland Revenue (1963) 3 All ER 622
Category: Costs Parties: First Plaintiff/respondent: Joanne Elizabeth Ludwig
Second Plaintiff/respondent: Robert Walter Ludwig
Defendant/applicant: Lynton Barrett JeffreyRepresentation: Counsel:
Solicitors:
Defendant/applicant: C.T. Ensor
Plaintiffs/respondents: David Shad, Shad Partners
Defendant/applicant: John Michael Whitfield, Whitfields Solicitors
File Number(s): 2018/145933 Publication restriction: No.
Judgment
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This is my fourth judgment in these proceedings and the Court’s fifth judgment. My previous three judgments fully set out the background to these proceedings Ludwig and Jeffrey [2019] NSWSC 1550; Ludwig v Jeffrey (No. 2) [2020] NSWSC 1677 and Ludwig v Jeffrey (No. 3) [2021] NSWSC 23. The proceedings then went on appeal and the Court of Appeal gave judgment upholding Court’s previous determinations: Ludwig v Jeffrey (No 4) [2021] NSWCA 256. This judgment should be read with the Court's previous judgments. Events, matters and persons are referred to each judgment in the same way.
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This judgment determines most of the remaining costs issues between these parties in this long-running action. The Court indicated in declarations made with its third judgment, given on 27 January 2021, that it would impose various caps upon Mr Jeffrey’s claims for indemnity from the trust fund, as follows:
“[3] Declare that the defendant/cross-claimant is entitled to indemnity out of and may apply the fund held by the independent solicitor, for the defendant/cross-claimant’s legal costs and expenses incurred as trustee in the administration of the Trust, for the following periods in the following amounts, or up to the following maximum limits:
(a) $29,558.78 for legal costs and expenses incurred for the period prior to the commencement of these proceedings on 9 May 2018;
(b) a maximum of $90,000 for legal costs and expenses incurred in the period between 9 May 2018 and 20 February 2020;
(c) a maximum of $20,000 for legal costs and expenses incurred in the period after 20 February 2020 up to…
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- AGLC
- Ludwig v Jeffrey (No. 5) [2022] NSWSC 497
- Case
- [2022] NSWSC 497
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the application of section 98(4)(c) of the Civil Procedure Act 2005, which allows for gross sum costs orders in certain circumstances. Specifically, the court had to decide whether the Ludwigs' challenge to the quantum of the indemnity was sufficient to warrant a review of the gross sum costs order previously made in favour of Mr. Jeffrey. The court needed to weigh the merits of the Ludwigs' contentions against the principles governing costs orders in civil litigation.
In delivering the judgment, the court considered the extensive history of the litigation and the previous determinations regarding the scope of the trustee's indemnity. The Ludwigs argued that the previous orders were not adequately justified by the nature and complexity of the proceedings. However, the court found that the previous orders were appropriate and that the Ludwigs' challenge to the quantum of the indemnity did not provide a sufficient basis to alter the costs orders. The court emphasised that the previous orders had been made in the context of a broader dispute over the trustee's indemnity, and the Ludwigs' challenge did not warrant a departure from those orders.
The court ultimately upheld the gross sum costs order in favour of Mr. Jeffrey, concluding that the Ludwigs' contentions did not justify a variation of the costs orders. The final orders confirmed the previous costs orders and dismissed the Ludwigs' application to challenge the quantum of the indemnity.
Orders
Orders of the court
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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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