PARTIES: Anne Maire McCusker (Appellant) David Andrew Rutter (First Respondent) Jane Elizabeth Rutter (Second Respondent) Kenneth Bruce Hancock (Third Respondent)
LOWER COURT MEDIUM NEUTRAL CITATION: Rutter v McCusker (No 2) [2009] NSWSC 71
COUNSEL: R Brender and C Carter (Appellant) M R Gracie and D A Neggo (First and Second Respondents) P O'Loughlin (Third Respondent)
SOLICITORS: Brock Partners (Appellant) Gadens Lawyers (First and Second Respondents) Hancock Aldis & Roskov (Third Respondent)
CATCHWORDS: Costs- unsuccessful claims by three adult children for provision under Family Provision Act 1982- whether order for costs should be made against the respondent children for their unsuccessful claims- trial judge found improper motive of appellant executrix in instigating daughter's proceedings- allegation never put to executrix- finding, which was not merely dicta, unsupportable- Court of Appeal needs to exercise discretion afresh- whether overall justice of the case warrants order other than costs follow the event- strong guidelines that court should exercise discretion that successful party should have costs- no sufficient displacement in this case.
DECISION: (1) Appeal allowed. (2) The respondents David Andrew Rutter and Jane Elizabeth Rutter to pay jointly and severally the appellant's and the third respondent's costs of the appeal. (3) Set aside the costs orders made by McLaughlin AsJ. (4) In lieu order that David Andrew Rutter and Jane Elizabeth Rutter jointly and severally pay 85% of the appellant's costs of the proceedings in the Equity Division. (5) Order that the appellant receive out of the estate her costs incurred in the proceedings in the Equity Division brought by her daughter Flossiy on an indemnity basis. (6) Order…
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.
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AGLC
McCusker v Rutter [2010] NSWCA 318
Case
[2010] NSWCA 318
Decision Date
CaseChat Overview and Summary
The case of *McCusker v Rutter* concerned appeals by three adult children against a primary judge's decision regarding costs in proceedings brought under the *Family Provision Act 1982*. The children had made unsuccessful claims for provision from the estate of their deceased parent. The executrix of the estate, the appellant, sought costs against the unsuccessful claimants.
The central legal issues before the Court of Appeal were whether the primary judge had erred in his costs orders, particularly in light of a finding he made about the executrix's alleged improper motive in instigating one of the daughter's proceedings, and whether the court should exercise its discretion to depart from the usual rule that costs follow the event. The court was required to determine if the overall justice of the case warranted an order other than the successful party receiving their costs.
The Court of Appeal found that the primary judge's finding of improper motive on the part of the executrix was unsupportable, as this allegation had not been put to her during the proceedings. Consequently, the Court of Appeal determined it needed to exercise its discretion regarding costs afresh. The court held that there were no sufficient grounds to displace the strong guideline that the successful party should generally be awarded costs.
The appeal was allowed. The orders made by the primary judge concerning costs were set aside. The adult children, David Andrew Rutter and Jane Elizabeth Rutter, were ordered to pay the appellant's and the third respondent's costs of the appeal. They were also ordered to pay 85% of the appellant's costs in the Equity Division proceedings. The appellant was to receive her costs from the estate on an indemnity basis for proceedings brought by her daughter Flossiy, and for defending proceedings brought by David Andrew Rutter and Jane Elizabeth Rutter to the extent not recovered from them. The third respondent administrator was permitted to retain his costs of the appeal from the estate to the extent not recovered from the first and second respondents. Certificates under the *Suitor's Fund Act* were to be granted to David Andrew Rutter and Jane Elizabeth Rutter.
Orders
Orders of the court
(1) Appeal allowed.
(2) The respondents David Andrew Rutter and Jane Elizabeth Rutter to pay jointly and severally the appellant's and the third respondent's costs of the appeal.
(3) Set aside the costs orders made by McLaughlin AsJ.
(4) In lieu order that David Andrew Rutter and Jane Elizabeth Rutter jointly and severally pay 85% of the appellant's costs of the proceedings in the Equity Division.
(5) Order that the appellant receive out of the estate her costs incurred in the proceedings in the Equity Division brought by her daughter Flossiy on an indemnity basis.
(6) Order that the appellant receive out of the estate on an indemnity basis her costs incurred in defending the proceedings brought by David Andrew Rutter and Jane Elizabeth Rutter to the extent to which those costs are not recovered from those parties.
(7) The third respondent administrator may retain out of the estate his costs of the appeal to the extent to which they are not recovered from the first and second respondents.
(8) The respondents David Andrew Rutter and Jane Elizabeth Rutter to have certificates under the Suitor's Fund Act.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]