Priestley v Priestley (No 2) - [2017] NSWCA 212

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Priestley v Priestley (No 2) [2017] NSWCA 212
Hearing dates: On the papers
Decision date: 23 August 2017
Before: McColl JA, Macfarlan JA, Emmett AJA
Decision:
(1)   Appeal allowed.

(2)   Judgment and orders made in the Equity Division on 15 August 2016 and 25 August 2016 be set aside.

(3)   In lieu thereof:
(a)   Declare that the defendant holds the right, title and interest of the late Gordon Priestley (deceased) in the whole of the land comprised in Lots 10 and 30 in DP751545, Lot 6 in DP751574 and Lot 10 in DP751574 (Salt Glen) and in water access licence no. WAL34421 (water licence) on trust for the plaintiff absolutely;
(b)   Order that the defendant transfer to the plaintiff the whole of the land comprising Salt Glen, by delivering to the plaintiff’s solicitor an executed Transfer in registrable form and the Certificates of Title, within 7 days of the making of this order;
(c)   Order that the defendant transfer to the plaintiff the deceased’s share in the water licence, by delivering to the plaintiff’s solicitors the documents necessary to effect such a transfer on the water access licence register, within 7 days of the entry of this order; and
(d)   Order that the defendant pay the plaintiff’s costs of the proceedings.

(4)   Order that the appellant have possession of Salt Glen forthwith upon registration of the Transfer referred to in order 3(b) hereof.

(5)   Grant leave to the appellant to issue a writ of possession for Salt Glen 14 days after registration of the said Transfer.

(6)   Order that the respondent pay the appellant’s costs of the appeal.

(7)   Order that the respondent’s costs of the first instance proceedings and the appeal, including the costs she has to pay the plaintiff/appellant, be paid from the Estate of the Late Gordon Wedlock Priestley on the indemnity basis.
(8) Respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.
Catchwords: COSTS – where son successfully sued father’s estate to recover entitlement to real estate and a share of a water access licence devised under father’s will to son’s mother – where mother also executrix of father’s estate – whether costs of executrix, including costs payable to appellant, should be paid out of deceased’s estate – whether departure from general rule that costs follow event justified by probate exception – where proceedings adversarial in nature
Legislation Cited: Suitors’ Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Douglas v James (No 2) [2015] NSWSC 969
James v Douglas [2016] NSWCA 178
Nicolina Clocchiatti v John Paul Pierobon & Ors; Estate of John Pierobon [2014] NSWSC 488
Perpetual Trustee v Baker [1999] NSWCA 244
Category: Principal judgment
Parties: Duncan James Priestley (Appellant)
Beverley Joy Priestley as Executrix of the Estate of the Late Gordon Wedlock Priestley (Respondent)
Representation:
Counsel:
T Alexis SC with M Cairns (Appellant)
M B Evans (Respondent)
Solicitors:
Cole & Butler Solicitors…

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.

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Details

Case: [2017] NSWCA 212
Decision Date: 23 August 2017

CaseChat Overview and Summary

This case concerned an appeal from orders made in the Equity Division of the Supreme Court of New South Wales. The plaintiff, the son of the deceased, had successfully sued the estate of his father, Gordon Priestley, to recover his entitlement to real estate and a share of a water access licence that had been devised under the father's will to the son's mother. The mother was also the executrix of the father's estate. The central dispute revolved around whether the costs incurred by the executrix, including costs payable to the plaintiff, should be paid out of the deceased's estate, and whether the usual rule that costs follow the event was displaced by the "probate exception" in these adversarial proceedings.

The court was required to determine whether the executrix, as the defendant in the proceedings, was entitled to have her costs, including those payable to the successful plaintiff, paid out of the deceased's estate. This involved considering whether the nature of the proceedings, which were found to be adversarial rather than contentious probate proceedings, justified a departure from the general rule that costs follow the event. The court also had to consider the application of the probate exception, which typically allows for the costs of all parties in contentious probate matters to be paid out of the estate.

The court allowed the appeal, setting aside the previous judgments and orders. It declared that the defendant held the deceased's interest in the specified land and water access licence on trust for the plaintiff absolutely. The court ordered the defendant to transfer the land and the water licence to the plaintiff within seven days. The court also ordered that the defendant pay the plaintiff's costs of the proceedings. Crucially, the court ordered that the respondent executrix's costs of both the first instance proceedings and the appeal, including the costs she was ordered to pay the plaintiff, be paid from the Estate of the Late Gordon Wedlock Priestley on an indemnity basis. The respondent was also granted a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.

Orders

Orders of the court

(1) Appeal allowed.

(2) Judgment and orders made in the Equity Division on 15 August 2016 and 25 August 2016 be set aside.

(3) In lieu thereof:

(a) Declare that the defendant holds the right, title and interest of the late Gordon Priestley (deceased) in the whole of the land comprised in Lots 10 and 30 in DP751545, Lot 6 in DP751574 and Lot 10 in DP751574 (Salt Glen) and in water access licence no. WAL34421 (water licence) on trust for the plaintiff absolutely;

(b) Order that the defendant transfer to the plaintiff the whole of the land comprising Salt Glen, by delivering to the plaintiff’s solicitor an executed Transfer in registrable form and the Certificates of Title, within 7 days of the making of this order;

(c) Order that the defendant transfer to the plaintiff the deceased’s share in the water licence, by delivering to the plaintiff’s solicitors the documents necessary to effect such a transfer on the water access licence register, within 7 days of the entry of this order; and

(d) Order that the defendant pay the plaintiff’s costs of the proceedings.

(4) Order that the appellant have possession of Salt Glen forthwith upon registration of the Transfer referred to in order 3(b) hereof.

(5) Grant leave to the appellant to issue a writ of possession for Salt Glen 14 days after registration of the said Transfer.

(6) Order that the respondent pay the appellant’s costs of the appeal.

(7) Order that the respondent’s costs of the first instance proceedings and the appeal, including the costs she has to pay the plaintiff/appellant, be paid from the Estate of the Late Gordon Wedlock Priestley on the indemnity basis.

(8) Respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Priestley v Priestley (No 2) [2017] NSWCA 212
Hearing dates:	On the papers
Decision date:	23 August 2017
Before:	McColl JA, Macfarlan JA, Emmett AJA
Decision:	(1) Appeal allowed. (2) Judgment and orders made in the Equity Division on 15 August 2016 and 25 August 2016 be set aside. (3) In lieu thereof: (a) Declare that the defendant holds the right, title and interest of the late Gordon Priestley (deceased) in the whole of the land comprised in Lots 10 and 30 in DP751545, Lot 6 in DP751574 and Lot 10 in DP751574 (Salt Glen) and in water access licence no. WAL34421 (water licence) on trust for the plaintiff absolutely; (b) Order that the defendant transfer to the plaintiff the whole of the land comprising Salt Glen, by delivering to the plaintiff’s solicitor an executed Transfer in registrable form and the Certificates of Title, within 7 days of the making of this order; (c) Order that the defendant transfer to the plaintiff the deceased’s share in the water licence, by delivering to the plaintiff’s solicitors the documents necessary to effect such a transfer on the water access licence register, within 7 days of the entry of this order; and (d) Order that the defendant pay the plaintiff’s costs of the proceedings. (4) Order that the appellant have possession of Salt Glen forthwith upon registration of the Transfer referred to in order 3(b) hereof. (5) Grant leave to the appellant to issue a writ of possession for Salt Glen 14 days after registration of the said Transfer. (6) Order that the respondent pay the appellant’s costs of the appeal. (7) Order that the respondent’s costs of the first instance proceedings and the appeal, including the costs she has to pay the plaintiff/appellant, be paid from the Estate of the Late Gordon Wedlock Priestley on the indemnity basis. (8) Respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.
Catchwords:	COSTS – where son successfully sued father’s estate to recover entitlement to real estate and a share of a water access licence devised under father’s will to son’s mother – where mother also executrix of father’s estate – whether costs of executrix, including costs payable to appellant, should be paid out of deceased’s estate – whether departure from general rule that costs follow event justified by probate exception – where proceedings adversarial in nature
Legislation Cited:	Suitors’ Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Douglas v James (No 2) [2015] NSWSC 969 James v Douglas [2016] NSWCA 178 Nicolina Clocchiatti v John Paul Pierobon & Ors; Estate of John Pierobon [2014] NSWSC 488 Perpetual Trustee v Baker [1999] NSWCA 244
Category:	Principal judgment
Parties:	Duncan James Priestley (Appellant) Beverley Joy Priestley as Executrix of the Estate of the Late Gordon Wedlock Priestley (Respondent)
Representation:	Counsel: T Alexis SC with M Cairns (Appellant) M B Evans (Respondent) Solicitors: Cole & Butler Solicitors…