P Barnes (as executor of the estate of the late Lawrence Barnes) v D Barnes (No 4)

In the matter of P Barnes (as executor of the estate of the late Lawrence Barnes) versus D Barnes, the dispute involved issues of costs and possession of property. The case was heard in the Supreme Court of New South Wales. The executor of the estate sought to recover costs and possession of the property from the co-executor, who had failed to complete the sale of the property after receiving notice to do so. The co-executor also refused a Calderbank offer and advanced a case with no real prospect of success.

The primary legal issues were whether an indemnity costs order should be made against the defendant and if a lump sum costs order should be made payable from the defendant's share of the estate. The court had to determine if the defendant's failure to complete the sale after service of notice to complete constituted necessary delinquency in the litigation. Additionally, the court considered whether it was just to make a lump sum order payable out of the defendant's share of the estate.

The court held that the defendant's failure to complete the sale after receiving notice did not establish necessary delinquency in the litigation. However, the court found that the defendant had refused a Calderbank offer and advanced a case with no real prospect of success. Consequently, an indemnity costs order was made against the defendant. The court also considered the provisions of the Civil Procedure Act 2005 (NSW), sections 60 and 98, and concluded that a lump sum order was just in the circumstances. Therefore, the court ordered the defendant to pay a lump sum out of their share of the estate. Furthermore, the court refused the defendant's request for a further 90 days to vacate the property, as a writ of possession had already been issued.