Porker v Richards (No 2)

[2017] SASC 11

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…