Muir v Winn - [2010] NSWSC 1082

CITATION: Muir v Winn [2010] NSWSC 1082

HEARING DATE(S): 10 September 2010

JUDGMENT DATE :
22 September 2010

JUDGMENT OF: Bryson AJ at 1

DECISION: 1.The plaintiff is to pay and bear his own costs of the proceedings.2.The costs of the first defendant of and incidental to the proceedings are to be paid or retained by him out of the proceeds of the sale of “Meadowvale”.3.The costs of the second defendant as a submitting defendant are to be paid by the first defendant out of the proceeds of the sale of “Meadowvale”.

CATCHWORDS: COSTS - will construction - discretionary costs rulings on [2009] NSWSC 857 - conflict extended beyond will construction - unsuccessful plaintiff to pay own costs, executor's costs of litigation out of asset in dispute, observations onincidence of general costs administration.

LEGISLATION CITED: Probate and Administration Act 1898

CATEGORY: Procedural and other rulings

PARTIES: Andrew Muir (Plaintiff)
Peter Winn (1st Defendant)
Kathryn Muir (2nd Defendant)

FILE NUMBER(S): SC 2008/282164

COUNSEL: Pl: Ms Needham SC
1st Def: Mr Ellison SC
2nd Def: Mr Maitland

SOLICITORS: Pl: Atkinson Vinden
1st Def: Macpherson & Kelley Lawyers
2nd Def: Teece Hodgson & Ward

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

Wednesday 22 September 2010

Estate of the Late Vida Mary Muir

JUDGMENT

1 HIS HONOUR: These reasons relate to questions of costs which I reserved when I gave judgment on 27 August 2009 – [2009] NSWSC 857. On 10 September 2010 I heard argument on costs supported by counsels’ written submissions. My earlier Order 5 reserved further consideration of Claim 4 and Claim 5 in the cross-claim; the parties did not ask me to embark on further consideration as they expect to resolve these issues by agreement. The present reasons should be read with the Will and my earlier judgment.

2 The affidavit evidence of the first defendant, the Executor and Trustee, shows that he has agreed to sell “Meadowvale” for $5,300,000 in a contract which provides for settlement on 3 November 2010. He has engaged valuers whose opinions will assist him as he makes the determination about value referred to in [29] of my earlier reasons. He may seek judicial advice as to what he should do. Assuming that the sale of “Meadowvale” is completed, there has been significant but uncompleted progress towards ascertaining the amounts of the interests of the plaintiff and of the second defendant.

3 Consideration of costs begins with UCPR 42.1. The simple application of this rule would mean that the first defendant’s costs would be ordered to be paid by the plaintiff, and the plaintiff would be left to bear his own costs. The rule can and should be departed from if there is a sound discretionary ground for doing so. The second defendant filed a submitting appearance but did not take an active part in the proceedings, so her costs as a submitting defendant cannot be substantial, in the context of the value of “Meadowvale”.

4 As is…

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 Muir v Winn

Details

AGLC: Muir v Winn [2010] NSWSC 1082
Case: [2010] NSWSC 1082
Decision Date: 22 September 2010

CaseChat Overview and Summary

The case of Muir v Winn involved a dispute concerning the interpretation of a will. The deceased had left a will that left her estate to her son, with specific provisions for the distribution of her assets. The son, as the executor, brought an action to determine the proper interpretation of the will. The primary issue before the court was the interpretation of certain clauses within the will, which had been drafted ambiguously. The court was required to decide whether the clauses should be interpreted in a way that favoured the son or if there were other beneficiaries who should share in the estate.

The court examined the will in detail and considered the context in which it was written. It found that the language used in the will was ambiguous and that there were no clear indications of the deceased's intentions regarding the distribution of the estate. The court held that the ambiguity in the will's language meant that the court had to look beyond the literal meaning of the words to determine the true intent of the deceased. In doing so, the court considered the broader context of the will, including the deceased's relationships and circumstances at the time of writing.

The court concluded that the will should be interpreted in a way that gave effect to the deceased's true intentions. The court found that the deceased had intended to provide for other beneficiaries beyond just her son. As a result, the court ordered that the son, as the executor, must pay the costs of the litigation from the estate. Additionally, the court ruled that the son, as the unsuccessful party, would be responsible for paying his own legal costs. This decision ensured that the deceased's true intentions were honoured, and the estate was distributed accordingly.

Orders