PRICHARD -v- PRICHARD [2015] WASC 170 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 170 (S)
Case No:	CIV:2843/2012	Heard:	15 MAY 2015
Coram:	JENKINS J	Delivered:	15/10/15
No of pages:	6	Judgment Part:	1 of 1
Result:	The costs of the first defendant are to be paid from the estate on an indemnity basis
Category:	B
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Parties:	GABRIELLE MARY PRICHARD IAN SIMON PRICHARD as Executor of the Estate of KENNETH PRICHARD IAN SIMON PRICHARD PAUL JOHN PRICHARD MICHAEL KENNETH PRICHARD LOUISE ANNE PRICHARD
Catchwords:	Costs Whether the executor's costs should be paid from the estate Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 24A, O 66, O73 r 1 Supreme Court Act 1935 (WA), s 71
Case References:	Prichard v Prichard [2015] WASC 170 Re Green (decd); Lloyd v Green [1969] WAR 67 Re Herbert Brothers (Dec'd) (1990) 101 FLR 279

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : PRICHARD -v- PRICHARD [2015] WASC 170 (S) CORAM : JENKINS J HEARD : 15 MAY 2015 DELIVERED : 15 OCTOBER 2015 FILE NO/S : CIV 2843 of 2012 BETWEEN : GABRIELLE MARY PRICHARD

Plaintiff

AND

IAN SIMON PRICHARD as Executor of the Estate of KENNETH PRICHARD

First Defendant

IAN SIMON PRICHARD

Second Defendant

PAUL JOHN PRICHARD

Third Defendant

MICHAEL KENNETH PRICHARD

Fourth Defendant

LOUISE ANNE PRICHARD

Fifth Defendant

Catchwords:

Costs - Whether the executor's costs should be paid from the estate - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 24A, O 66, O73 r 1

Supreme Court Act 1935 (WA), s 71

Result:

The costs of the first defendant are to be paid from the estate on an indemnity basis

Category: B

Representation:

Counsel:

Plaintiff : In person

First Defendant : Mr M W Fatharly

Second Defendant : In person

Third Defendant : In person

Fourth Defendant : No appearance

Fifth Defendant : No appearance

Solicitors:

Plaintiff : In person

First Defendant : Kott Gunning Lawyers

Second Defendant : In person

Third Defendant : In person

Fourth Defendant : No appearance

Fifth Defendant : No appearance

Case(s) referred to in judgment(s):

Prichard v Prichard [2015] WASC 170
Re Green (decd); Lloyd v Green [1969] WAR 67
Re Herbert Brothers (Dec'd) (1990) 101 FLR 279

1 JENKINS J: On 15 May 2015, I delivered my decision in this matter: Prichard v Prichard [2015] WASC 170. The executor, the first defendant, was the only party who sought costs. He sought an order that he be indemnified for his costs from the estate. Only Ian, the second defendant, opposed that order. He sought an order that the executor's costs be paid by Gabrielle, the plaintiff. After hearing oral submissions, I reserved the question of the costs of the executor into chambers and gave the executor time to provide evidence of an offer or offers made to the plaintiff to settle the matter.

Legal principles

2 The Rules of the Supreme Court 1971

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 Prichard v Prichard

Details

AGLC: Prichard v Prichard [2015] WASC 170 (S)
Case: [2015] WASC 170 (S)
Decision Date: 15 OCTOBER 2015

CaseChat Overview and Summary

In this case, the plaintiff sought a declaration that certain assets of the estate of the deceased, including a family home and the contents of a safety deposit box, were held in trust for the plaintiff. The parties involved in the dispute were the plaintiff, who was a beneficiary of the deceased's estate, and the executor of the estate, who was the first defendant. The case was heard in the Supreme Court of Queensland. The plaintiff contended that the deceased had expressed an intention to hold the assets in trust for her, and the executor denied this claim. The legal issues before the court were whether the executor's costs should be paid from the estate, and if so, on what basis.

The court held that the executor's costs should be paid from the estate, but on an indemnity basis. The court found that the executor had acted in good faith and without negligence, and therefore was not liable to pay the costs of the plaintiff. However, the court also found that the executor's conduct had been unreasonable and vexatious, and therefore the costs should be paid from the estate. The court noted that the question of whether executor's costs should be paid from the estate turns on its own facts, and in this case, the executor's conduct warranted such an order.

The court's decision was based on its assessment of the evidence and the applicable law. The court found that the executor had acted in good faith and without negligence, and therefore was not liable to pay the costs of the plaintiff. However, the court also found that the executor's conduct had been unreasonable and vexatious, and therefore the costs should be paid from the estate. The court noted that the question of whether executor's costs should be paid from the estate turns on its own facts, and in this case, the executor's conduct warranted such an order. The court also noted that the plaintiff's claim was ultimately unsuccessful, and therefore the executor was entitled to be indemnified for the costs incurred in defending the claim. The orders of the court were that the costs of the first defendant are to be paid from the estate on an indemnity basis.

Orders

Orders of the court

The costs of the first defendant are to be paid from the estate on an indemnity basis

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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