Nicol v Nicole - [2020] NSWSC 419

Supreme Court

New South Wales

Medium Neutral Citation: Nicol v Nicole; The Estate of Peter Nicole [2020] NSWSC 419
Hearing dates: In Chambers and on the papers
Date of orders: 20 April 2020
Decision date: 20 April 2020
Jurisdiction: Equity
Before: Hallen J
Decision:
Makes no order as to costs, with the intent that each party will bear his own costs, respectively, of the proceedings, including the costs of the argument as to costs.

Catchwords: COSTS – Probate and administration of the deceased estate – Deceased died in 2018 – Deceased left a will appointing his two sons as executors and trustees of his estate – Somewhat acrimonious relationship between the two sons – Contentious proceedings commenced – Contest between two sons as to who should be appointed as the executor of deceased’s estate – Each sought, by way of principal relief, his appointment only – Ultimately agreed that an independent solicitor should be appointed to administer the estate and orders were made for that appointment – No adjudication on the merits of the claims by each - Sole issue left for determination is how the costs of the proceedings should be determined
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12
Callaway v Callaway; The Estate of Aileen Margaret Callaway [2019] NSWSC 1275
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
Fordyce v Fordham (2006) 67 NSWLR 497; [2006] NSWCA 274
Fysh v Coote [2000] VSCA 150
Mavrideros v Mack (1998) 45 NSWLR 80
Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Category: Costs
Parties: Nicolas Nicol (Plaintiff)
Jack Nicole (Defendant)
Representation:
Counsel:
J R B Pearson (Plaintiff)
P J Muscat (Defendant)
Solicitors:
Shad Partners (Plaintiff)
L Rundle & Co (Defendant)

File Number(s): 2019/00220567

Judgment

HIS HONOUR: These reasons relate to the estate of Peter Nicole (also known as Peter Nicol) (the deceased), who died on 17 August 2018, leaving a Will dated 12 October 1990.
The instituted executor named in the Will was Marie Nicole, the wife of the deceased. She predeceased the deceased, having died on 4 August 2016. The substituted executors named in the Will of the deceased were the Plaintiff (Nicolas) and Defendant (Jackie, as he was referred to in the Will, but also known as Jack), who are the only children of the deceased. They are also the only beneficiaries, entitled equally, to share the whole of the estate of the deceased.
The parties agreed that, following written submissions being filed and served, the Court could determine the outstanding issue, being the costs of the proceedings, on the papers and in Chambers.

The Proceedings

On 16 July 2019, the Plaintiff published an online…

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 Nicol v Nicole

Details

AGLC: Nicol v Nicole [2020] NSWSC 419
Case: [2020] NSWSC 419
Decision Date: 20 April 2020

CaseChat Overview and Summary

Nicol v Nicole was a case heard in the Supreme Court of Victoria, involving a dispute between the two sons of a deceased individual over the administration of his estate. The deceased, who passed away in 2018, left a will that appointed both sons as executors and trustees of his estate. However, due to the contentious and acrimonious relationship between the two sons, they commenced proceedings against each other, each seeking to be appointed as the sole executor. The court did not make a decision on the merits of their claims but rather ordered that an independent solicitor be appointed to administer the estate. The only issue left for the court to determine was how the costs of the proceedings should be allocated between the parties.

The legal issue before the court was the determination of the costs of the proceedings. The court was required to consider the conduct of the parties and the outcomes achieved in the proceedings to determine the appropriate allocation of costs. The court needed to balance the principles of fairness and justice in its determination of costs, taking into account the acrimonious nature of the relationship between the parties and the fact that no adjudication on the merits of their claims was made.

In its reasoning, the court considered the conduct of both parties throughout the proceedings. It noted that both sons had acted unreasonably and without justification in bringing the proceedings and seeking their respective appointments as the sole executor. The court found that the costs incurred by the estate were a direct result of the parties' conduct and that neither party was entitled to recover their costs from the estate. The court further found that the parties should bear their own costs of the proceedings and that no order for costs should be made against either party. The court's decision was based on the principle that the costs of litigation should be borne by the parties who caused the litigation, and that the estate should not be burdened with the costs of the parties' acrimonious dispute.

The court's final orders were that neither party was entitled to recover their costs from the estate, and that each party was to bear their own costs of the proceedings. The court also made orders for the appointment of an independent solicitor to administer the estate, as previously agreed upon by the parties.

Orders