Re: Alexander James Vyner deceased and Lynette Marcia Vyner deceased - G.J. Vyner

[2000] QSC 24

SUPREME COURT OF QUEENSLAND

CITATION:	Re: Alexander James VYNER deceased and Lynette Marcia VYNER deceased – G.J. Vyner v L.J. Vyner [2000] QSC 024
PARTIES:	GAVIN JOHN VYNER (plaintiff) and LESLIE JAMES VYNER (defendant)
FILE NO:	7769 of 1996
DIVISION:	Trial Division
DELIVERED ON:	28 February 2000
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Shepherdson J
ORDER:	That plaintiff's costs of and incidental to this action including his costs of and incidental to the counterclaim be assessed on an indemnity basis and paid out of the estates of Alexander James Vyner and Lynette Marcia Vyner. Liberty to apply to the plaintiff in case he has any difficulty in recovering those costs out of the estates.
CATCHWORDS:	COSTS – ADMINISTRATION ACTION – successful claim by beneficiary
COUNSEL:	K J Lynch and C J Clark for the plaintiff
SOLICITORS:	Walker Pender for plaintiff

1. SHEPHERDSON J: On 24 August 1999 I delivered my reasons for judgment in

   this action and I then said:

   "As to the plaintiffs' costs of the action to date including costs of the defence and counterclaim I propose to order that they be assessed and paid by the defendant as administrator with the will annexed of each estate. However, before making such order I should like to hear submissions from the plaintiff's counsel as to whether those costs should be on a solicitor and client rather than party and party basis."

2. Counsel for the plaintiff have submitted that costs should be assessed on an

   indemnity basis because that basis (the new name for "solicitor and client" basis) is

   most nearly the equivalent of the "common fund" basis on which in the past costs in

   an administration action such as the present were generally awarded.

3. In Williams & Mortimer Executors Administrators and Probate (Published 1970)

   the authors in ch 60 have dealt with "Costs in the Chancery Division" and at p

   604 the authors say:

   "The costs of a person (beneficiary or creditor) bringing proceedings against a personal representative are now always in the discretion of the court, and an order refusing a beneficiary or creditor plaintiff his costs in an administration action, or making him pay costs, is an order within the discretion of the judge ... ."

4. The authors then discussed proceedings brought by a beneficiary – the plaintiff

   Gavin in the present action claimed to be a beneficiary entitled to his share in each

   estate but this claim was resisted by the defendant Leslie. I found Gavin was

   entitled as claimed.

5. In Gavin's case he was really obliged to commence and prosecute this action if he

   were to have any hope of being recognised as a beneficiary under each parent's will.

   I can well understand the defendant Leslie James Vyner who was and is the

   administrator with the will annexed of each parent's estate, requiring Gavin to prove

   his entitlement to benefit under each will. Gavin has succeeded in that proof but

   Leslie James Vyner went further and positively opposed the relief sought by Gavin

   (see the extract from his defence and counterclaim in para 7 of my reasons for

   judgment delivered on 24 August 1999). I note that in Williams and Mortimer (supra) at p 555 the author, in dealing with an administration action before

   administration is complete has said:

   "Since an executor is supposed to remain impartial his proper course is to bring before the court any problem affecting his beneficiaries himself."

   Arguably, action seeking a declaration as to Gavin's entitlement to share in the

   estate should have been instituted by Leslie as administrator with the will annexed

   of each testator. Such a course was not taken.

6. In my view the interests of justice require that Gavin do have his costs out of each

   estate on an indemnity basis. I therefore order that Gavin's costs of and incidental

   to this action including his costs of and incidental to the counterclaim be assessed

   on an indemnity basis and paid out of the estates of the abovenamed Alexander

   James Vyner and Lynette Marcia Vyner deceased. I grant liberty to apply in case

   Gavin has any difficulty in recovering those costs out of the estates.

7. I direct that a copy of these reasons be sent to the defendant.