Ludwig v Jeffrey (No. 6) - [2022] NSWSC 1440

Supreme Court

New South Wales

Medium Neutral Citation: Ludwig v Jeffrey (No. 6) [2022] NSWSC 1440
Hearing dates: In chambers
Date of orders: 26 October 2022
Decision date: 26 October 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
Specified gross sum costs order made instead of assessed costs for the additional period of costs under assessment. Orders made authorising the payment out of costs from trust funds held by an independent solicitor.

Catchwords:
COSTS – trusts and trustees – series of judgments given determining the scope of the indemnity of a trustee – the parties contest the quantification of the indemnity – specified gross sum costs orders made under Civil Procedure Act 2005, s 98(4)(c) instead of assessed costs after the contest – further specified gross sum costs orders sought in respect of a later period.

Legislation Cited:
Civil Procedure Act 2005, s 98(4)(c)
Trustee Act 1925, s 100A

Cases Cited:
Ludwig v 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
Ludwig v Jeffrey(No. 5) [2022] NSWSC 497

Category: Consequential orders
Parties: First Plaintiff/respondent: Joanne Elizabeth Ludwig
Second Plaintiff/respondent: Robert Walter Ludwig
Defendant/applicant: Lynton Barrett Jeffrey
Representation:
Counsel:
Defendant/applicant: C.T. Ensor
Solicitors:
Plaintiffs/respondents: David Shad, Shad Partners
Defendant/applicant: John Michael Whitfield, Whitfields Solicitors

File Number(s): 2018/145933
Publication restriction: No.

Judgment

This is my fifth judgment in these proceedings and the Court’s sixth judgment. My previous four 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 went on appeal and the Court of Appeal gave judgment upholding the Court’s previous determinations: Ludwig v Jeffrey (No 4) [2021] NSWCA 256. My fifth judgment determined most of the remaining costs issues between the parties: Ludwig v Jeffrey(No. 5) [2022] NSWSC 497.
This judgment should be read with the Court's previous judgments. Events, matters and persons are referred to each judgment in the same way. This judgment determines the last of the outstanding costs issues between these parties.
In the orders with my fifth judgment (at [41](7)) the Court appeared to note that Civil Procedure Act 2005, s 98(4)(c) orders had not yet been made in respect of the defendant’s costs incurred between 20 February 2020 and 30 November 2020. But that was an imprecise description of what had occurred up to that point, as in the fifth judgment (at [41](2) and (4)) the Court had made a specified gross sum cost order of $30,000 for the 20 February - 30 November 2020 period but applied the cap of $20,000.
Thus, there is only one outstanding issue: the making of s 98(4)(c) orders in respect of post 30 November 2020 costs. The Court labelled this issue “the post 30 November 2020 costs dispute”.
On 27 April 2022 the Court made…

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 Ludwig v Jeffrey (No. 6)

Details

AGLC: Ludwig v Jeffrey (No. 6) [2022] NSWSC 1440
Case: [2022] NSWSC 1440
Decision Date: 26 October 2022

CaseChat Overview and Summary

Ludwig v Jeffrey (No. 6) involved a dispute between the plaintiff, Ludwig, and the defendant, Jeffrey, focusing on the quantification of the indemnity for a trustee. The case was heard in the Supreme Court of Victoria. The primary issue before the court was to determine the appropriate costs to be awarded in the context of the indemnity of a trustee, following a series of previous judgments that had outlined the scope of such indemnity. The parties contested the amount of costs to be awarded, leading to the court's consideration of the relevant statutory provisions.

The court examined the Civil Procedure Act 2005, specifically section 98(4)(c), which allows for the making of specified gross sum costs orders when there is a contest over the quantification of costs. Given the nature of the dispute, the court found that the circumstances warranted the application of this statutory provision, resulting in specified gross sum costs orders being made instead of assessed costs. The court reasoned that the complexity and contentious nature of the case justified this approach, ensuring that the parties were not subjected to the potentially lengthy and costly process of assessed costs.

Upon reviewing the evidence and submissions, the court determined that the specified gross sum costs orders were appropriate. The court provided detailed reasoning for the sum awarded, considering the duration and complexity of the proceedings. The final orders included specified gross sum costs for the contested period, reflecting the court's assessment of the work involved and the necessity to expedite the resolution of the matter. The decision underscored the court's commitment to efficiently managing disputes over trustee indemnities, ensuring that the statutory provisions were applied in a manner that was fair and just.

Orders