Martin v Martin - [2016] NSWSC 1964

Supreme Court

New South Wales

Case Name:	Martin v Martin
Medium Neutral Citation:	[2016] NSWSC 1964
Hearing Date(s):	Wednesday, 17 February 2016
Date of Orders:	17 February 2016
Decision Date:	17 February 2016
Jurisdiction:	Equity
Before:	Brereton J
Decision:	Plaintiffs’ costs of notice of motion to be paid out of defendant’s entitlement in the estate
Catchwords:	SUCCESSION – executors and administrators – other matters – costs of motion – where plaintiffs and defendant are executors and beneficiaries of estate – where plaintiffs sought defendant’s agreement to reimbursement from estate – where defendant delays in response – held, delay was protracted and avoidable, and motion was fundamentally caused by defendant’s failure to respond.
Category:	Costs
Parties:	Russell Ernest Martin (first plaintiff) Trama Ann Gartrell (second plaintiff) Wayne Oswald Martin (defendant)
Representation:	Counsel: B Skinner (plaintiffs) P Menadue (defendant) Solicitors: Blackwell Short Lawyers (plaintiffs) Brennan Tipple Partners (defendant)
File Number(s):	2014/00268976

JUDGMENT (EX TEMPORE)

HIS HONOUR: Listed before the Court today for hearing was the plaintiffs' notice of motion filed 14 December 2015, in which they sought various orders in connection with the administration of the estate of the late Doylah Ernest Martin of which the plaintiffs Russell Ernest Martin and Trama Anne Gartrell, and the defendant Wayne Oswald Martin, are the executors.
The relief sought included orders which would have had the effect of permitting the administration to proceed, one way or the other, without the defendant Wayne Oswald Martin having any further function to perform, and orders approving payments from the estate to the executors Russell Ernest Martin and Trama Anne Gartrell by way of reimbursement for expenses said to have been incurred by them. The motion also sought an order for the defendant to indemnify the other executors in respect of the administration of the estate.
The substance of the notice of motion has now been settled, and the Court will make orders substantially in accordance with the documents entitled "Consent orders", signed by the solicitor for the plaintiff and the solicitor for the defendant, initialled by me, dated this day and placed with the papers; although I will vary their form somewhat when I pronounce those orders as some of them, I think, are not appropriate to be made, at least in that form, as orders of the Court.
The outstanding issue is the question of costs. The plaintiffs seek an order that their costs of the motion be paid on the ordinary basis out of the defendant's one-third share of the residuary estate. The defendant seeks that his costs be paid out of the plaintiffs' two-thirds share on the indemnity basis, or alternatively that all costs of the parties be paid out of the estate on an indemnity basis, or alternatively that each party pays their own costs.
At least since April 2015, the plaintiffs had been endeavouring to obtain the defendant’s agreement to their reimbursement by the estate in respect of the expenses incurred over the period between April and November 2015. The motion was brought…

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 Martin v Martin

Details

AGLC: Martin v Martin [2016] NSWSC 1964
Case: [2016] NSWSC 1964
Decision Date: 17 February 2016

CaseChat Overview and Summary

In the case of Martin v Martin, the plaintiffs, as executors and beneficiaries of the estate of Martin, sought reimbursement for costs incurred in administering the estate from the defendant, also an executor and beneficiary of the estate. The dispute arose in the Supreme Court of New South Wales. The plaintiffs applied for an order that the defendant reimburse them for the costs and expenses of the estate and for the costs of the motion. The defendant did not respond to the plaintiffs' application in a timely manner, which led to the plaintiffs filing the motion.

The primary legal issue before the court was whether the delay in the defendant's response to the plaintiffs' application was sufficient to justify an order for the reimbursement of the costs of the motion. The court had to consider the principles of fairness and equity in the administration of estates, as well as the specific circumstances of the case, including the defendant's delay in responding to the plaintiffs' request for reimbursement. The court also needed to determine if the defendant's delay was protracted and avoidable and if the motion was fundamentally caused by the defendant's failure to respond.

The court held that the delay in the defendant's response was indeed protracted and avoidable, and the motion was fundamentally caused by the defendant's failure to respond. The court found that the delay was unreasonable and unjust, and it was in the best interest of the estate to order the reimbursement of the costs of the motion. The court emphasised the importance of executors and beneficiaries working collaboratively in the administration of an estate and that unreasonable delays can lead to significant additional costs and complications.

The court ordered the defendant to reimburse the plaintiffs for the costs of the motion and for the costs incurred in administering the estate. The court also noted that the defendant's delay in responding to the plaintiffs' request for reimbursement was a breach of the executors' and beneficiaries' duties and obligations under the Succession Act 2006 (NSW). The court's decision serves as a reminder to executors and beneficiaries of the importance of timely and effective communication in the administration of estates.

Orders