SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
PORKER v RICHARDS & OTHERS (NO 2)
[2017] SASC 11
Judgment of The Honourable Justice Blue
14 February 2017
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ISSUES
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS
Principal reasons for judgment delivered on 1 July 2016 in Porker v Richards [2016] SASC 98.
The first and second defendants seek reimbursement and exoneration for legal costs and other expenses claimed to have been incurred as executors of the estate.
Questions arise as to interest on the principal amounts of the judgments to be entered against the first and third defendants.
Questions of costs of action arise between the parties.
Held:
1. The second defendant is entitled to indemnity out of the estate for non-legal expenses incurred as executor of $6,843 and exoneration for legal costs incurred as executor of $18,964 (at [18]).
2. The first defendant is entitled to indemnity out of the estate for non-legal expenses incurred as executor of $17,829 and for legal costs incurred as executor of $6,302 (at [24]).
3. Liberty to any party to apply within 21 days in respect of estate legal costs incurred by or allowed to the first or second defendant (at [58]).
4. The estate is entitled to interest of $10,659 against the first defendant (at [26]).
5. The first defendant is entitled to interest against the third defendant of $4,118 (at [27]).
6. Judgment is granted in favour of the first and second defendants as executors of the estate against the first defendant in her personal capacity for $53,503 inclusive of interest and net of the first defendant’s entitlement to indemnity against the estate (at [61]).
7. The first defendant is entitled to judgment against the third defendant for $16,870 inclusive of interest (at [62]).
8. The following amounts be paid out of the monies (excluding interest) that were paid into the suitors’ fund in this action:
(a) $68,324 to Public Trustee on trust for Garry;
(b) $30,691 to Stephanie;
(c) $94,131 to Marjory;
(d) $51,504 to Bryan.
(at [65] and [66]).
9. Interest earned on the monies in the suitors’ fund is to be calculated and paid in equal portions to the plaintiff and the first, second and third defendants (at [66]).
10. The first defendant is to pay the plaintiff’s costs of action on a party and party basis up to 27 October 2015 and thereafter on a solicitor and client basis (at [36]).
11. The first defendant is to pay the second defendant’s costs in respect of the March 2016 affidavits of the first defendant and Benjamin Walker, the first defendant’s costs of giving evidence at trial and the costs of appearance of her lawyer on the first day of trial (at [43] to [45]).
12. The first defendant is to pay the third defendant’s costs of the first defendant’s cross claim against him from 13 March 2016…
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- AGLC
- Porker v Richards (No 2) [2017] SASC 11
- Case
- [2017] SASC 11
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the determination of estate costs, reimbursement of expenses to the executors, and the distribution of the estate among the beneficiaries. The court had to decide on the allocation of costs between the parties and the executors, as well as the distribution of the estate based on the will and the judgments granted in favour of the estate and the beneficiaries.
The court found that the costs incurred by the executors should be reimbursed from the estate, with certain exceptions. Specifically, the court allowed Marjory to be reimbursed for expenses incurred in her capacity as executor and for legal costs incurred to von Doussas. Stephanie was also granted reimbursement for expenses incurred in her capacity as executor. The court further ordered that a portion of the funds in court be retained pending any applications for estate legal costs. Regarding the distribution of the estate, the court declared that the net total value of the estate should be paid equally among the four beneficiaries. The court also made orders for judgments in favour of the executors against Stephanie and in favour of Stephanie against Bryan, with the amounts to be offset against their respective shares in the estate.
The court made several orders, including declarations regarding reimbursement of expenses to the executors, liberty to apply for estate legal costs, judgments in favour of the executors against Stephanie and in favour of Stephanie against Bryan, and the distribution of the estate among the beneficiaries. The court also ordered that Stephanie pay certain costs to Garry, Marjory, and Bryan, with costs to be adjudicated if not agreed. The court further allowed Marjory’s costs incurred with von Doussas as estate costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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