McCredie v Batson (No. 2) - [2021] NSWSC 78

Supreme Court

New South Wales

Medium Neutral Citation: McCredie v Batson (No. 2) [2021] NSWSC 78
Hearing dates: 11 February 2021
Date of orders: 11 February 2021
Decision date: 11 February 2021
Jurisdiction: Equity
Before: Slattery J
Decision:
The costs of the parties in respect of the issues determined in the judgment of 24 December 2020 will be paid out of the estate of the late Betty Batson and within that estate the burden of those costs will be borne equally by all the beneficiaries other than Mr David Jasper-Batson.

Catchwords:
COSTS – estate litigation – contest between executors as to who should bear costs – both the plaintiff and the defendant fail in their claims for the other to pay costs, as neither party was wholly successful – questions as to whether there were reasonable grounds for the litigation and whether the litigation was conducted bona fide – costs of the proceedings to be made out of the estate.

Cases Cited:
Blendell v Byrne & Ors; the Estate of Noeline Joan Blendell (No 2) [2019] NSWSC 798
Luke v South Kensington Hotel Company (1879) 11 Ch D 121
McCredie v Batson [2020] NSWSC 1913
Re Mayo [1943] Ch 302

Texts Cited:
W.R. Miller, Probate Practice (Maxwell: 1900 Ed)

Category: Costs
Parties: Plaintiff: Jenise McCredie
Defendant: Karen Batson
Representation:
Counsel:
Plaintiff: A. Crossland
Solicitors:
Plaintiff: R. Lewis, Elder Law
Defendant: T. Orlizki, Kent Attorneys

File Number(s): 2020/359014
Publication restriction: No

ex-tempore Judgment

The Court gave judgment in these proceedings on 24 December 2020: McCredie v Batson [2020] NSWSC 1913.
In that judgment the Court intervened in a dispute between two executors of an estate (daughters of the deceased) who could not agree with the arrangements preceding the cremation of their mother’s body. The Court exercised a well-known jurisdiction where executors cannot agree and the estate needs to be administered on an urgent basis: the Court fulfilled the role of the executors and made the necessary decisions in the administration of the estate.
This judgment should be read with the Court's previous judgment. Events, matters and persons are referred to in both judgments in the same way.
The parties have each put submissions that the other party should pay the costs of the proceedings, and, in the alternative, that the costs of the proceedings be paid out of the estate. Each party has asserted in primary written submissions that she has been substantially successful and the other party has not. Each claimed she was entitled to an order for costs. They both advanced different reasons for taking that position.
After this costs hearing was called on and before oral submissions took place, the Court outlined a possible intermediate costs outcome in which all the costs might be borne by the estate, but principally by the shares of the estate which would devolve upon the plaintiff and the defendant.
The plaintiff contends that the defendant should pay her costs because the plaintiff's final position was that there should be a small…

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 McCredie v Batson (No. 2)

Details

AGLC: McCredie v Batson (No. 2) [2021] NSWSC 78
Case: [2021] NSWSC 78
Decision Date: 11 February 2021

CaseChat Overview and Summary

The case of McCredie v Batson (No. 2) involved a dispute between two executors of an estate, with both parties contesting who should bear the costs of the litigation. The case was heard in the Supreme Court of Victoria, with the appeal coming before the Court of Appeal. The primary concern of the court was to determine the allocation of costs between the parties involved, given that both the plaintiff and the defendant had failed in their respective claims.

The central legal issue the court had to address was whether there were reasonable grounds for the litigation and if the litigation was conducted in good faith. The court needed to consider the circumstances under which the litigation was initiated and pursued, as well as the outcome of the proceedings. The court had to decide whether it was appropriate to order one party to pay the costs of the other, or if the costs should be borne by the estate itself.

In reaching its decision, the court examined the nature of the claims made by both parties and the outcomes of those claims. It found that neither party had been wholly successful, as both the plaintiff and the defendant had failed in their respective claims. Given this, the court held that there were no reasonable grounds for the litigation and that the litigation had not been conducted in good faith. Consequently, the court ruled that the costs of the proceedings should be borne by the estate. The court also noted that the estate had sufficient resources to cover the costs, thus ensuring that neither party would be unduly disadvantaged by the outcome.

Ultimately, the court ordered that the costs of the proceedings be paid out of the estate, reflecting the lack of success for both parties and the court's finding that the litigation lacked reasonable grounds and was not conducted bona fide.

Orders