Reeves v Reeves (No 2)

[2024] NSWSC 386

Supreme Court

New South Wales

Medium Neutral Citation:

Reeves v Reeves (No 2) [2024] NSWSC 386

Hearing dates:

19 March 2024

Date of orders:

16 April 2024

Decision date:

16 April 2024

Jurisdiction:

Equity

Before:

Meek J

Decision:

Orders made consequent upon an offer of compromise with partial order otherwise. Defendant not permitted an indemnity out of the estate for the costs ordered to be paid to the plaintiff.

Catchwords:

SUCCESSION — Dispute regarding costs payable consequent upon contested hearing relating to construction and rectification of the deceased’s last Will and estoppel claim — Approximately 9 months after commencement of proceedings defendant appointed pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 7.10(2)(b) to represent the deceased’s estate — Estoppel claim successful having practical effect of giving the plaintiff property to which he would not otherwise be entitled having regard to the dismissal of the construction and rectification claims

SUCCESSION — Interaction between the costs orders and statutory order under the Probate and Administration Act 1898 (NSW) (“PAA”) for payment of testamentary expenses — Court’s exercise of discretion under s 93(3) of the Trustee Act1925 (NSW) and s 98 of the Civil Procedure Act 2005 (NSW) (“CPA”) displaces (to the extent described in the costs order) the statutory order provisions of s 46C(2) of the PAA concerning how testamentary expenses are to be borne

COSTS — Offers of compromise — UCPR r 42.14 — Principles discussed — Whether offers contained element of ‘real’ or ‘genuine’ compromise (on facts – Yes) — Whether defendant acted reasonably in rejecting offers (on facts – No) — Whether there are other factors beyond the defendant’s reasonableness capable of supporting an ‘otherwise’ order — On facts plaintiff proposed a partial ‘otherwise’ order — Held partial order otherwise made ordering plaintiff to pay defendant’s costs of construction and rectification claims up to the time of the first offer

SUCCESSION — Costs — Discussion of means of appraising whether the cost or expense which is the focus of the indemnity sought is ‘properly’ or ‘reasonably’ incurred

SUCCESSION — Representative orders — Nature and scope of an estate representative’s role bearing upon costs — Discussion of sources of a representative’s obligations and entitlements — Discussion of options for representatives in estate proceedings to protect themselves as to costs liability, specifically by seeking indemnity and judicial advice — Discussion of jurisdiction (equitable and statutory) to provide for representation of an estate — Discussion of various UCPR Part 7 representation orders and choices, and the connection and interaction between them — Specific discussion regarding representative orders under UCPR r 7.10(2)(b)

SUCCESSION — Representative appointment pursuant to UCPR r 7.10(2)(b) — Reference to historical background — Requirements for consent and independence — Discussion of terms of appointment — Discussion regarding nature and scope of a UCPR r 7.10(2)(b) appointee’s obligations and entitlements — Discussion regarding availability of indemnity and judicial advice to UCPR r 7.10(2)(b) appointee

COSTS — Indemnity — Discussion regarding how one assesses whether a party is substantively acting in his or her own interest as opposed to acting in a representative capacity

COSTS — Set-off of costs orders favouring either side

LAW REFORM — It is timely that there be an amendment (or at least consideration of an amendment) to the CPA and UCPR to clarify the position of whether a r 7.10(2)(b) representative may be given judicial advice

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Probate and Administration Act 1898 (NSW)

Supreme Court Act 1970 (NSW)

Trustee Act 1925 (NSW)

Supreme Court Rules 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

A Goninan & Co v Atlas Steels [2003] NSWSC 956

Adam v Mullen (1976) 18 BPR 35,773

Ahmed v Chowdhury [2012] NSWSC 1452

Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42

Aliperti v Official Trustee [2000] NSWSC 315

Alsop Wilkinson (a firm) v Neary [1996] 1 WLR 1220

Anderson v Hill [2017] NSWSC 1149

Antoun v Antoun (No 3); Antoun v Hanna [2023] NSWSC 684

Application by Muhammad Elias Attia [2020] NSWSC 94

Application of Macedonian Orthodox Community Church St Petka Inc (No 2) (2005) 63 NSWLR 441; [2005] NSWSC 558

Application of Peter Hodges [2021] NSWSC 55

Application of the NSW Trustee and Guardian; Estate of Alice Maude Critchley [2020] NSWSC 1635

Application of Uncle’s Joint Pty Ltd ACN 148 176 792 [2014] NSWSC 321; (2014) 12 ASTLR 487

Arakella Pty Ltd v Paton (2004) 60 NSWLR 334; [2004] NSWSC 13

Australian Legion of Ex-Servicemen & Women [2021] NSWSC 149

Bale v Kimberley Developments Pty Ltd (No 2) [2022] NSWSC 1009

Bar-Mordecai v Rotman - Estate of the late Eveline Hillston (Supreme Court (NSW), Bryson J, 21 July 1998, unrep)

Basis Capital Funds Management Ltd v BT Portfolio Services Ltd [2008] NSWSC 555

Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59

Bayside Council v Estate of Goodman [2019] NSWSC 530

Bovaird v Frost [2009] NSWSC 917

Cardaci v Cardaci [2023] WASCA 158

Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398; [1995] HCA 9

Carnie v Esanda Finance Corporation Ltd (1995) 38 NSWLR 465

Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20

ChiefCommissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; [1998] HCA 4

Colquhoun v Graffione (2000) 97 FCR 376; [2000] FCA 325

Cong v Shen [2019] NSWSC 1675

Cong v Shen (No 2) [2020] NSWSC 600

Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248

Cumming v Sands [2001] NSWSC 507

David v Ryan [2018] NSWSC 971

De Lorenzo v De Lorenzo [2019] NSWSC 534

Drummond v Drummond [1999] NSWSC 923

Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502

Estate of Zbrozek; Duszyk v Morgan - Interim Administrator of the Estate of the late Maria Zbrozek [2020] NSWSC 1591

Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic(No 3) [2017] NSWCA 109

GEL Custodians Pty Ltd v Estate of the late Geoffrey Francis Wells [2013] NSWSC 973

Gibson v Wills (1856) 21 Beav 620; 52 ER 999

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857

Government Insurance Office v Johnson [1981] 2 NSWLR 617

Hardoon v Belilios [1901] AC 118

Hewitt v Gardner [2009] NSWSC 1107

Hewitt v Gardner [2009] NSWSC 705; (2009) 3 ASTLR 407

Infigo II Pty Ltd v Linmas Holdings Pty Ltd [2023] NSWSC 755

Ivanovski v Perdacher [2009] NSWSC 913

Katsoulas v Kritikakis; Katsoulas v Apostolatos [2024] NSWSC 67

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391

Lean v Alston [1947] KB 467

Lee v Australian Executor TrusteesLtdas trustee of the estate of the late Ronald William Lee (No 4) [2021] WASC 257

Leichhardt Municipal Council v Green [2004] NSWCA 341

Lewis v Martinez as representative of the partners t/as HWL Ebsworth Lawyers [2021] NSWSC 1303

Lewis v Nortex Pty Ltd (in liq) [2006] NSWSC 480

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42

Maddock v Registrar of Titles (Vic) (1915) 19 CLR 681; [1915] HCA 10

Meres v Meres (No 2) [2017] NSWSC 523

Morgan v Johnson (1998) 44 NSWLR 578

Murdocca v Murdocca [2002] NSWCA 373

Murdocca v Murdocca(No 2) [2002] NSWSC 505

Nadilo v Souris (No 2) [2019] NSWSC 246

National Trustees Executors and Agency Company of Australasia Ltd v Barnes (1941) 64 CLR 268; [1941] HCA 3

Nowell v Palmer (1993) 32 NSWLR 574

Oasis Fund Management Ltd v Royal Bank of Scotland NV [2010] NSWSC 584

Photios v Photios [2019] NSWCA 158; (2019) 372 ALR 264

Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) [2004] FCA 1437; (2004) 212 ALR 281

Rappard v Williams [2013] NSWSC 1279

Rattigan v Hanly [2020] NSWSC 1722

Re Beddoe; Downes v Cottam [1893] 1 Ch 547

Re Estate Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311

Re Estate Nitopi, deceased [2018] NSWSC 1560

Re Estate of the late Assim [2015] NSWSC 337; (2015) 106 ACSR 544

Re Grimthorpe [1958] Ch 615

ReHubbard; Estate of Ross [2011] NSWSC 617; (2011) 4 ASTLR 497

Re Jones; Christmas v Jones [1897] 2 Ch 190

Re Permanent Trustee Australia Ltd (1994) 33 NSWLR 547

Reeves v Reeves [2024] NSWSC 134

Riva NSW Pty Ltd v Key Nominees Pty Ltd [2023] NSWSC 711

Shellharbour City Council v Johnson (No 2) (2006) 67 NSWLR 308; [2006] NSWCA 114

Stedman v O’Hearn; Hosemans v O’Hearn [2006] NSWSC 1122

Stojanovski v Stojanovski(No 3) [2020] NSWSC 1540

Tanwar v Aslam [2022] NSWCA 149

Templeton v Leviathan Pty Ltd (1921) 30 CLR 34; [1921] HCA 55

TFML Ltd v MacarthurCook Fund Management Ltd [2013] NSWCA 291

Walker v Harwood [2017] NSWCA 228

Walton v Walton [2015] NSWSC 405

Wang v Yu (No 2) [2024] NSWSC 4

Warton v Yeo [2015] NSWCA 115; (2015) 15 ASTLR 462

Wishart v Castlecroft Securities Ltd [2009] CSIH 65; 2010 SC 16

Zupicic v La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 1117

Texts Cited:

Dal Pont, G E, Law of Costs (5th ed, 2021, LexisNexis)

Dal Pont, G E, Law of Executors and Administrators (2022, LexisNexis)

Handler, Leslie and Richard Neal, Mason and Handler Succession Law and Practice New South Wales (LexisNexis)

Herzfeld, Perry and Thomas Prince, Interpretation (2nd ed, 2020, Lawbook Co.)

Heydon, J D and M J Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis)

Kiefel AC, Susan, “Judicial advice to trustees: its Origins, Purposes and Nature” (2019) 42(3) Melbourne University Law Review 993

Macquarie Dictionary, online ed

Williams, Sydney Edward and Frank Guthrie-Smith, Daniell’s Chancery Practice (8th ed, 1914, Stevens and Sons Ltd), Vol 1

Woodman, Roy Allan, Administration of Assets (1964, Law Book Co.)

Category:

Costs

Parties:

Russell Robert Reeves (Plaintiff)
Kevin Wayne Reeves (Defendant)

Representation:

Counsel:
C Birtles (Plaintiff)
S Fendekian (Defendant)

Solicitors:
Mullane & Lindsay Solicitors (Plaintiff)
Doyle Wilson Solicitors (Defendant)

File Number(s):

2022/153417

JUDGMENT

Introduction

1. HIS HONOUR: On 26 February 2024, I delivered reasons for judgment in these proceedings: see Reeves v Reeves [2024] NSWSC 134 (principal judgment/PJ). These reasons assume familiarity with the principal judgment and will adopt its nomenclature and abbreviations.

2. The proceedings involved a dispute between the plaintiff and the defendant, who are the only two children of the late Gloria Dawn Reeves (the deceased), in relation to the deceased’s farming land at Stroud Hill near Dungog, NSW.

3. I directed the parties to bring in short minutes of order to give effect to the reasons for judgment and to consider whether an appropriate costs order could be agreed. If no agreement was able to be reached, I directed the parties to contact my Associate to make arrangements for listing of the matter to address any contested question of the substantive orders and the costs to be made.

4. Following correspondence with my Associate, I listed the matter for mention on 5 March 2024. On that occasion, I made substantive orders (orders 1-6) in respect of the construction, rectification and estoppel claims. I further made directions for the parties to address the question of costs by serving evidence and submissions and listed the matter for argument on 19 March 2024.

5. Neither side provided the Court with estimates of costs incurred. However, it is evident that the costs of the hearing are very substantial. At the time of the resumed hearing in October 2023, in the context of an application by the defendant for an interim distribution (main hearing T 380-385), there was evidence adduced indicating that the defendant’s unpaid costs were then approximately $450,000 inclusive of GST (i.e. excluding paid costs): see affidavit of Rachel Gleeson at [18].

6. These reasons address the costs of the proceedings.

Issues

7. By way of preliminary observation, the submissions raised a number of issues regarding costs and, in particular, an issue regarding costs orders in respect of estate litigation in a context in which:

1. no grant of probate has yet been issued in respect of the deceased’s estate;

2. an interim administrator had been appointed with powers limited to tasks regarding collecting and preserving assets of the deceased, attending to payment of liabilities and some associated administrative matters;

3. the defendant (as distinct from the interim administrator) was appointed to represent the estate for the purposes of the proceedings; and

4. two offers of compromise had been served.

8. Overall, the question to be addressed is what is the proper costs order to be made as to both: (1) the basis of assessment of costs; and (2) the ultimate burden of costs.

9. Subject to the defendant’s submissions noted below, it was accepted that both offers of compromise were, at least in a formal sense, offers of compromise within the meaning of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and satisfied the formal requirements provided by UCPR r 20.26.

10. Essentially, the issues in respect of costs were as follows:

1. Did the offers of compromise contain an element of real or genuine compromise?

2. If the offers contained an element of genuine compromise, should the Court nonetheless make an “otherwise order” by reference to:

1. whether it was reasonable for the defendant to reject the offers; and

2. even if it was unreasonable for the defendant to reject the offers, whether other factors justified an “otherwise order”?

3. Should the defendant be permitted an indemnity for some or all of his costs out of the deceased’s estate?

11. The parties did not submit that the question of indemnity should be determined prior to the question of the effect of the offers of compromise. In their written submissions, the parties in substance proceeded on the basis that those questions should be answered sequentially. In Nadilo v Souris (No 2) [2019] NSWSC 246 (Nadilo), Leeming JA (sitting as a trial judge) addressed the effect of an offer of compromise prior to addressing the question of any right of indemnity. Having regard to the above matters, I will approach the questions in a similar manner.

12. The third issue, regarding indemnification, gives rise to important questions as to the nature of the role of a person appointed to represent the estate pursuant to UCPR r 7.10 (as occurred in this case) which have required some reflection on my part, particularly in light of the very substantial amount of costs incurred.

13. It is appropriate to set out some details regarding the hearing on costs and address some necessary background regarding the deceased’s property and estate, the administration of the deceased’s estate, the claims for relief in the proceedings, and my findings, in order to provide sufficient context for the determination of the costs issues.

Evidence and submissions

14. On the costs hearing (19 March 2024), Mr Birtles appeared on behalf of the plaintiff and Ms Fendekian on behalf of the defendant.

15. The plaintiff’s solicitor, Kristy Nunn, caused to be filed and served an affidavit sworn on 29 February 2024 addressing the issue of costs. That affidavit annexed correspondence and two offers of compromise served by the plaintiff on the defendant dated 22 December 2022 and 14 June 2023. The affidavit was read without objection.

16. Counsel for the parties filed and served written submissions as follows:

1. the plaintiff’s written submissions prepared by Mr Birtles and filed 11 March 2024 (PWS);

2. the defendant’s written submissions prepared by Ms Fendekian and Ms McNeil and filed 12 March 2024 (DWS); and

3. the plaintiff’s written submissions in reply prepared by Mr Birtles and filed 18 March 2024 (PRWS).

Background

Procedural background

17. In support of a submission that the defendant’s costs should be reimbursed by the estate, Ms Fendekian set out certain matters which, she submitted, constitutes the relevant procedural background. Those matters were as follows (footnotes omitted):

24. In the present case, both the plaintiff and the defendant were named executors under the Will of the deceased.

25. On 28 June 2022 a Summons for Probate was issued in respect of the Will on behalf of both the plaintiff and the defendant.

26. On 5 September 2022, the plaintiff and the defendant affirmed an Affidavit of Executors.

27. On 19 December 2022, orders were made for the appointment of Katelin Whitley of Bestic Law as “interim Administrator” of the estate.

28. On 2 March 2023, formal order was made pursuant to r 7.10(2)(b) of the UCPR appointing Wayne Reeves to represent the Estate of the Late Gloria Reeves for the purposes of this proceeding. At the time that the order was made, the Court noted that:

“As the parties are the principal beneficiaries named in the deceased’s Will, and as the Plaintiff is the party seeking rectification, the parties agree that the Defendant should be appointed as a representative of the deceased’s estate for the purposes of the proceedings.”

Landholding

18. The deceased’s landholdings comprised 21 lots and an enclosure permit entitlement. For ease of description, each of the 21 lots were given an abbreviated name in the principal judgment: see PJ [46].

19. The disputed land (identified below) was characterised in a number of ways, including by reference to the Dingadee lots (consisting of 10 lots) and part of the Kennilworth lots (consisting of 11 lots as well as the enclosure permit).

Estate summary

20. The amended inventory of property included property of the deceased under several categories, specifically:

1. 21 lots and an enclosure permit entitlement, which in total was estimated as having a value of $10 million;

2. cattle, farm machinery, plant and equipment, motor vehicles and a generator collectively estimated at $766,250; and

3. monies the subject of bank accounts, including a MasterCard, constituted residue totalling $1,550,230.80.

21. The executor’s affidavit disclosed that the deceased had liabilities at the date of her death comprising $4,161.63, leaving the net value of the deceased’s estate at $12,312,319.17: PJ [134]-[136]. Pursuant to the deceased’s last Will, leaving aside small legacies of $10,000 for each of the plaintiff’s three children, the plaintiff received (by means of a trust) property consisting of lots (a) and (b) (together with improvements thereon) and a trust for one-third of the balance of the deceased’s estate (i.e. one-third of residue).

22. The defendant received (by means of a trust) property consisting of all the livestock, motor vehicles, machinery and plant and equipment owned by the deceased, the real property owned by the deceased other than that gifted to the plaintiff (together with improvements thereon) and a trust for two-thirds of the residue of the deceased’s estate: PJ [116].

23. There is no suggestion in any of the submissions that the fact that the entitlements in cl 7.3 of the last Will were framed in the terms of a discretionary trust precluded any finding that the defendant was substantively the beneficiary of the disputed landholding and two-thirds of the residue and the plaintiff was substantively the beneficiary of lots (a) and (b) and one-third of the residue. I have addressed the costs issues accordingly.

24. Under the heading of Issue 10 in the principal judgment, dealing with relief, I made some observations regarding the residue and the burden of charges and liabilities in respect of the estate.

25. The deceased’s estate is a “solvent” estate (i.e. sufficient for the payment in full of her debts and liabilities) and it is not contended that there are any specific directions in the deceased’s last Will regarding discharge of her funeral, testamentary and administrative expenses, debts and liabilities. Thus, her estate is to be applied towards discharge of funeral, testamentary and administrative expenses, debts and liabilities in the order (statutory order) mentioned in Part 2 of the Third Schedule of the Probate and Administration Act 1898 (NSW) (PAA), per s 46C(2) of the PAA: PJ [729]-[736].

21. Certain distributions had been made to the defendant in the proceedings and, as I noted in the principal judgment, these would need to be the subject of some adjustment on a final administration of the deceased’s estate: PJ [737].

22. There is caselaw which discusses the principles in accordance with which costs of litigation concerning deceased estates are awarded and how those principles interact with rules for order of application of assets in the administration of estates: e.g. Murdocca v Murdocca (No 2) [2002] NSWSC 505 (Murdocca (No 2)) per Campbell J (as his Honour then was) (unaffected by the appeal on the construction issue which was dismissed with costs: Murdocca v Murdocca [2002] NSWCA 373).

23. Further, in some cases costs have been ordered to be paid out of the share of residue given to unsuccessful parties: see Re Estate Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311 at [37] per Campbell J, citing Harrington v Butt[1905] P 3.

24. Where an indemnity is permitted, a particular consideration which may guide a Court in determining the share of the estate (and thus the entitlements of beneficiaries) that bears the burden of the indemnity is the circumstances under which the costs, charges and expenses were incurred. Thus, if costs are incurred as a result of the action of only some of the beneficiaries, it may be ordered that the burden falls on the shares of those beneficiaries and such shares be exhausted before any part of the burden is placed on the shares of the other beneficiaries: e.g. National Trustees Executors and Agency Company of Australasia Ltd v Barnes (1941) 64 CLR 268 at 279 per Williams J (Rich ACJ agreeing); [1941] HCA 3.

Claims for relief

30. The proceedings were commenced by a statement of claim on 27 May 2022. In that statement of claim, the plaintiff sought relief in respect of rectification of the deceased’s last Will and declarations affecting lots registered in the name of the deceased on the basis of principles of estoppel.

31. Initially, there was no formal claim for relief in the proceedings in relation to construction of the deceased’s last Will. The amended statement of claim filed on 19 January 2023 added a construction claim which was retained in the further amended statement of claim filed on 7 September 2023.

32. As referred to above, the plaintiff received two of the Dingadee lots, being lots (a) and (b), pursuant to the deceased’s last Will.

33. The plaintiff’s claims for rectification in each of the statement of claim, amended statement of claim and further amended statement of claim related to seeking the remaining eight Dingadee lots (being lots (d), (e), (f-4), (f-5), (g), (h), (i) and (j)).

34. The plaintiff’s claims regarding estoppel related to seeking the remaining eight Dingadee lots and, in addition, three and a part of the Kennilworth lots (being lots (k), (l), (m) and part of lot (o)) constituting what was described as the Kennilworth leased lots (the disputed Kennilworth lots).

35. Thus, the parties’ dispute in the proceedings was a contest over:

1. the eight remaining Dingadee lots – by means of the construction and rectification claims and also, in part, the estoppel claim; and

2. the disputed Kennilworth lots – as part of the estoppel claim;

(the disputed lots).

36. The means by which the plaintiff pressed his case for the disputed lots were, as observed above, through three claims for relief, namely:

1. construction of the last Will (construction claim);

2. rectification of the last Will (rectification claim); and

3. a declaration that the disputed land to which the plaintiff claimed to be entitled was held on trust by the executors of the estate for the plaintiff based on principles of estoppel (estoppel claim).

Findings

37. Broadly speaking, I determined that the plaintiff’s construction claim and rectification claim failed but that the estoppel claim succeeded.

38. I expressed a provisional view regarding the costs of the proceedings as follows (PJ [827]):

My provisional view is that potentially one way of addressing costs in this case is to order that the plaintiff pay the defendant’s costs of the construction claim and rectification claim and for the defendant to pay the plaintiff’s costs of the estoppel claim, and to order that the costs of those issues be set off against one another: see for example Wang v Yu (No 2) [2024] NSWSC 4at [187]-[189], citing Riva NSW Pty Ltd v Key Nominees Pty Ltd [2023] NSWSC 711 at [221]-[224].

Offers of compromise

Offer of compromise dated 22 December 2022

39. The plaintiff’s offer of compromise dated 22 December 2022 (first offer) was in the following terms:

The plaintiff offers to compromise the whole of his claims made in the proceedings on the following terms:

1. Declaration that the legal personal representative(s) of the estate of the late Gloria Dawn Reeves hold the following property on trust for the plaintiff: Lot [X] in DP [XXXXX X], Lot [XX] in DP [XXXXX X], Lot [X] in DP [XXXXX X], Lot [X] in DP [XXXXX X], Lots [X] and [X] in DP [XXXXX X], Lot [X] in DP [XXXXX X], Lots [X] and [X] in DP [XXXXX ] and Lot [X] in DP [XXXXX XX] (“Dingadee Lots”)

2. Order that the Dingadee Lots be transferred to the plaintiff.

3. The plaintiff pay to the defendant the sum of $200,000.

4. The balance of the Statement of Claim is dismissed.

5. Order that the plaintiff’s costs assessed on the ordinary basis be paid out of the estate of the late Gloria Dawn Reeves.

6. Order that the defendant’s costs assessed on the indemnity basis be paid out of the estate of the late Gloria Dawn Reeves.

7. This offer of compromise is made in accordance with rule 20.26 of the Uniform Civil Procedure Rules 2005.

8. This offer is open for a period of 28 days from the date of the offer.

Offer of compromise dated 14 June 2023

40. The plaintiff’s offer of compromise dated 14 June 2023 (second offer) was in the following terms:

The plaintiff offers to compromise the whole of his claims made in these proceedings on the following terms:

1. Declaration that the legal personal representative(s) of the estate of the late Gloria Dawn Reeves hold the following property on trust for the plaintiff: Lot [X] in DP [XXXXX X], Lot [XX] in DP [XXXXX X], Lot [X] in DP [XXXXX X], Lot [X] in DP [XXXXX X], Lots [X] and [X] in DP [XXXXX X], Lot [X] in DP [XXXXX X], Lot [X] in DP [XXXXX XX] and Lot [X] in DP [XXXXX ].

2. Order that the property referred to in Clause 1 above be transferred to the plaintiff.

3. Order the balance of the Amended Statement of Claim filed 19 January 2023 be dismissed.

4. Order that the plaintiff’s costs assessed on the ordinary basis be paid out of the estate of the late Gloria Dawn Reeves.

5. Order that the defendant’s costs assessed on the indemnity basis be paid out of the estate of the late Gloria Dawn Reeves.

6. This offer of compromise is made in accordance with rule 20.26 of the Uniform Civil Procedure Rules 2005.

7. This offer is open for a period of 28 days from the date of the offer.

Costs orders sought by the parties

41. The plaintiff sought the following costs orders (PWS [20]):

1. Order that the plaintiff pay the defendant’s costs of the construction and rectification claims on the ordinary basis up to 22 December 2022.

2. Order that the defendant pay the plaintiff’s costs of the proceedings otherwise on the ordinary basis up to 22 December 2022.

3. Order that the defendant pay the plaintiff’s costs of the proceedings on the indemnity basis from 23 December 2022.

4. Order that the costs in order 1 be set off against the costs in orders 2 and 3.

5. Make no order as to the defendant’s costs from 23 December 2022 to the intent that he bear his own costs of the proceedings.

42. The defendant sought the following costs orders (DWS [43]):

1. To the extent that the defendant is liable to pay any costs of the proceedings, whether incurred by him directly (with respect to his own solicitors and counsel) or by reason of an order to pay the plaintiff’s costs, the defendant is to receive reimbursement from the estate of the late Gloria Dawn Reeves on an indemnity basis.

2. The plaintiff to pay the defendant’s cost of the construction and rectification claims on the ordinary basis to be agreed or assessed.

3. The defendant to pay the plaintiff’s cost of the estoppel claim on the ordinary basis to be agreed or assessed.

4. The costs of orders (2) and (3) be set off against each other.

43. If the first offer was held to satisfy UCPR r 42.14(1), strict application of UCPR r 42.14(2) would mean that the plaintiff’s costs of the proceedings would be paid on the ordinary basis up to 22 December 2022 rather than the modified order which the plaintiff sought, namely that:

1. the plaintiff pay the defendant’s costs of the construction and rectification claims on the ordinary basis up to 22 December 2022; and

2. the defendant pay the plaintiff’s costs of the proceedings otherwise on the ordinary basis up to 22 December 2022 (partial otherwise order).

44. In the context of this estate, it was evident from the terms of the last Will and the applicable statutory order that, if costs were to be paid out of the deceased’s estate, ordinarily the costs would be paid first out of residue. In the circumstances here prevailing, and notwithstanding the distributions made to the defendant, the parties and their counsel accepted that any costs orders for payment of costs out of the deceased estate would be borne by the residue, with the plaintiff’s share of residue bearing one-third of the costs and the defendant’s share of residue bearing two-thirds of the costs: T 6.34-7.12.

45. In addition, in his reply submissions and on the hearing of the matter, Mr Birtles submitted that if the Court were persuaded that it should order any party’s costs to be paid out of the deceased’s estate, the order should include the plaintiff’s costs of the construction and rectification claims, and any costs that would otherwise be ordered against the plaintiff for those claims: PRWS [18(b)]; T 8.21-.24.

Costs principles

General principles

46. Costs are in the discretion of the Court, subject to the Civil Procedure Act 2005 (NSW) (CPA), rules of Court and any other Act: s 98(1)(a) CPA.

47. The Court has full power to determine by whom, to whom and to what extent costs are to be paid (s 98(1)(b) CPA), and may order that costs are to be awarded on the ordinary basis or on an indemnity basis (s 98(1)(c) CPA).

48. Subject to Part 42 of the UCPR, if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 UCPR.

49. Unless the Court orders otherwise or the UCPR otherwise provide, costs payable to a party under an order of the Court are to be assessed on the ordinary basis: r 42.2 UCPR.

50. Further, in cases involving Will construction, relevantly s 93(3) of the Trustee Act 1925 (NSW) (Trustee Act) provides:

In any proceedings with respect to the management or administration of any property subject to a trust or forming part of the estate of a testator or intestate, or with respect to the interpretation of the trust instrument, the Court may, if it thinks fit, order any costs to be paid out of such part of the property as in the opinion of the Court is the real subject matter of the proceedings.

51. An award of costs, of its nature, is compensatory in the sense of being awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings. Costs are not awarded by way of punishment of the unsuccessful party: Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ; [1990] HCA 59.

52. Ms Fendekian referred to the decision of Ward CJ in Eq (as her Honour then was) in Bale v Kimberley Developments Pty Ltd (No 2) [2022] NSWSC 1009 (Bale) at [98]-[99], where her Honour stated as follows:

98. The applicable principles were not in dispute. The power to award costs (contained in s 98 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act)) is a broad discretion, although it must be exercised judicially (see Oshlack; and more recently, Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276 at [136] per McColl JA (with whom Sackville AJA and Adamson J agreed)) and with regard to the overriding statutory mandate under the Civil Procedure Act (see s 56).

99. The usual order is that costs follow the event (r 42.1 of the UCPR); unless it is considered that some other order ought to be made (see Gretton at [38] per Beazley JA, as her Excellency then was (with whom Mason P agreed)). Further, it is not disputed that costs orders in civil litigation are well recognised as being compensatory, not punitive, in nature (see Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [37] per Gleeson JA, with whom Meagher and Barrett JJA concurred, in turn citing Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543 per Mason CJ; see further Ohn at 84 per Cole JA).

53. A number of observations may be made.

54. First, s 98 of the CPA confers a very wide discretion. It enables the Court to decide who should bear the costs of litigation before it quite independently of whether those costs do, or do not, amount to testamentary expenses: Murdocca (No 2) at [70] (remarks concerning the provisions of s 76 of the Supreme Court Act 1970 (NSW), which for present purposes are not materially different to the relevant provisions of s 98 of the CPA).

55. Secondly, s 93(3) of the Trustee Act enables the Court to order the costs of construing a particular clause of a Will out of the property which is the subject of that clause: Murdocca (No 2) at [68].

56. Thirdly, the Court’s discretion under s 93(3) of the Trustee Act (to order any costs to be paid out of such part of the property as in the opinion of the Court is the real subject matter of the proceedings) and s 98 of the CPA (to order the costs of the proceedings to be borne in such way as the Court thinks just), if exercised, displaces (to the extent described in the costs order) the statutory order provisions of s 46C(2) of the PAA concerning how testamentary expenses are to be borne: Murdocca (No 2) at [76].

57. I will return to this third observation below in relation to the question of indemnity.

Offers of compromise

58. The UCPR provide a regime by which offers of compromise may be served to compromise any claim in the proceedings. In cases where an offer is made, a party who has obtained a favourable judgment outcome, having regard to the terms of the offer, is “entitled” to have its costs assessed on an indemnity basis from the beginning of the day following the date of the offer (or 11 am on that following day, if the offer was made on or after the first day of the trial), unless the Court orders otherwise: see rr 42.14, 42.15 and 42.15A UCPR.

59. UCPR r 42.14 deals with the situation where an offer of compromise has been made by the plaintiff in accordance with the UCPR but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the offer: r 42.14(1) UCPR.

60. Relevantly, UCPR r 42.14(2) provides as follows:

42.14   Where offer not accepted and judgment no less favourable to plaintiff

…

(2)  Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim—

(a)  assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and

(b)  assessed on an indemnity basis—

(i)  if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and

(ii)  if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.

61. There is facility under the UCPR, prior to the making of any order under rr 42.14 or 42.15, for the offeree party to request the offeror party to satisfy the Court that the offeror party was at all material times willing and able to carry out the offer: r 42.17 UCPR. No such request was made in this case.

62. In Meres v Meres (No 2) [2017] NSWSC 523, Hallen J indicated at [43]-[44] that the question for determination regarding the effect of what is said to be an offer of compromise involves a two-stage process. His Honour stated as follows:

43. From the authorities, it appears the question for determination regarding the effect of what is said to be an Offer of Compromise involves a two-stage process. The first stage is to enquire whether the offer made is an ‘Offer of Compromise’ at all, within the meaning of the UCPR. This will depend, in part, on whether it satisfies the formal requirements laid down by UCPR rule 20.26. It also depends, in part, on whether the offer made is one that can truly be called a “compromise”.

44. If the court concludes that the offer which is made is an “Offer of Compromise” within the meaning of the Rules, and that the offer made is one that can truly be called a compromise, then UCPR rule 42.15A(2) operates to establish a ‘default’ position, relevantly that, if the defendant obtains a judgment no less favourable than that which the defendant had offered to accept, then indemnity costs would follow. It is then that the second stage of the process arises, in that the court can “otherwise order”. The court will “otherwise order” if it is persuaded that is appropriate, in the interests of justice, that the “default” position ought not apply: Manly Council v Bryne (No 2) [2004] NSWCA 227, per Campbell JA, at [10]; Evans v Braddock (No 2) [2015] NSWSC 518, at [52].

Element of “real” or “genuine” compromise

63. For an offer to be regarded as an offer of compromise it must contain a real element of “compromise”: see e.g. Leichhardt Municipal Council v Green [2004] NSWCA 341 at [23], [31]-[37] per Santow JA (Bryson and Stein JJA agreeing).

64. Whether any particular offer has the required element of compromise depends upon the totality of the circumstances and involves an impressionistic assessment: see Shellharbour City Council v Johnson (No 2) (2006) 67 NSWLR 308; [2006] NSWCA 114 at [20]-[23] per Hunt AJA (Beazley (as her Excellency then was) and Tobias JJA agreeing).

65. In her written submissions, Ms Fendekian submitted as follows (DWS [8]-[10]):

8. As to the first-stage of the process, for an offer of compromise made under the UCPR to attract an indemnity costs order, it must involve a “genuine offer of compromise” and not merely be made so as to trigger the costs consequences under the rules: Leach v the Nominal Defendant(QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 (Leach) at [41] (McColl JA, Gleeson JA, Sackville AJA) citing Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 (at [16]) (Spigelman CJ, Beazley and McColl JJA).

9. Whether there was a real element of compromise is determined objectively according to the circumstances of the particular case at the time the offer was made rather than with the benefit of hindsight: Leach at [42] citing Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 (at [17]); Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344.

10. The authorities reveal that an “offer” that is properly viewed as merely a token compromise – made “more in the hope of obtaining an advantage on costs rather than for the purpose of genuinely compromising the dispute” – is also likely to fall outside the rules: see Dal Pont Law of Costs, 5th ed 2021 at [13.7] and the numerous cases cited there. As stated by Brereton J in TXAustralia Pty Ltd v Broadcast Australia Pty Ltd (Costs) [2012] NSWSC 1200 at [8]:

“[i]t was not the purpose of these rules to establish a regime that would have the practical effect of conferring on a successful party an entitlement to indemnity costs if it made an offer containing but a slight concession that did not involve an objectively realistic endeavour to bring about a compromise of the proceedings.”

66. Mr Birtles did not relevantly dispute those principles.

Power to order “otherwise”

67. The power to order “otherwise” must be for proper reasons: Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 (Leach) at [47] per McColl JA (Gleeson JA and Sackville AJA agreeing), adopting the comments of Hely J in Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) [2004] FCA 1437; (2004) 212 ALR 281 at [17].

68. The mere fact that it was reasonable for a litigant to take the view that he or she did in rejecting the offer is not enough to displace the rule. However, that does not mean that reasonableness of the rejection is an irrelevant consideration: Leach at [48].

69. Ms Fendekian submitted that (DWS [16]-[17]):

1. caselaw has not exhaustively stated the circumstances in which the Court’s discretion to “order otherwise” might be exercised, referring to Leach at [48] citing New South Wales Insurance Ministerial Corporation v Reeve (1992) 42 NSWLR 100 at 102 per Gleeson CJ; and

2. a weighty consideration, though not necessarily decisive, is whether it was reasonable for the defendant to reject the offer, referring to Leach at [48] and G E Dal Pont, Law of Costs (5th ed, 2021, LexisNexis) (Dal Pont – Costs) at [13.33] and the cases cited therein.

70. In Morgan v Johnson (1998) 44 NSWLR 578 (Morgan v Johnson), Mason P stated at 581E-582E:

The leading cases on the Supreme Court Rules are Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721 and NSW Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100. The leading cases on the corresponding provision in the District Court Rules are Hillier v Sheather (1995) 36 NSWLR 414, Quach v Mustafa (Court of Appeal, 15 June 1995, unreported) and Houatchanthara v Bednarczyk (Court of Appeal, 14 October 1996, unreported). The following principles can be extracted:

(1) The purpose of the rule is to encourage the proper compromise of litigation, in the private interests of individual litigants and the public interest of the prompt and economical disposal of litigation: Maitland Hospital (at 725-726); Hillier (at 421, 431).

(2) The aim is to oblige the offeree to give serious thought to the risk involved in non-acceptance: Maitland Hospital (at 724).

(3) The prima facie consequence of non-acceptance will be that the rule will be enforced against the non-accepting party: NSW Insurance Ministerial Corporation v Reeve (at 102); Hillier (at 422). This is because, from the time of non-acceptance “notionally the real cause and occasion of the litigation is the attitude adopted by [the party] which has rejected the compromise”: Maitland Hospital (at 724); see also Hillier (at 420).

(4) Lying behind the rule is the common knowledge that “litigation is inescapably chancy”: Maitland Hospital (at 725). For this reason, the ordinary provision is expected to apply in the ordinary case: ibid NSW Insurance Ministerial Corporation v Reeve (at 102-103). The mere fact that it was reasonable for the litigant to take the view that he or she did in rejecting the offer is not enough to displace the rule: NSW Insurance Ministerial Corporation v Reeve (at 102). As Clarke JA expressed it in Houatchanthara (at 2-3):

“The rule lays down the general principle that should be applied, and the order provided for in that rule should only be departed from for proper reasons which, in general, only arise in an exceptional case.

It is clear that if the rule operates, the plaintiff will be significantly disadvantaged, but that disadvantage flows naturally from the risks of litigation. The idea behind the rule is to encourage settlement or compromise of proceedings, and more specifically, to encourage litigants to give serious consideration to the settlement of proceedings. Where an offer is made by a defendant to a plaintiff, the latter is put on notice that unless he or she accepts that offer, there is a significant risk that the order provided for by the rule may follow. In declining to accept the offer, the plaintiff undertakes the risk and the consequences that flow naturally from that risk.”

(5) The discretion to displace the rule is a judicial one, requiring the private and public purposes of the rule to be borne in mind: Maitland Hospital (at 725-726). Reasons must be given for “otherwise ordering”: Hillier (at 419); Quach.

71. In Walker v Harwood [2017] NSWCA 228 (Walker v Harwood), Basten JA made an observation at [16] qualifying the statement of Clarke JA referable to principle (4) above. His Honour stated as follows at [16]-[20] (omitting footnotes):

16. The statement of Clarke JA set out in principle (4) came from Houatchanthara v Bednarczyk. In Regency Media Pty Ltd v AAV Australia Pty Ltd this Court doubted the propriety of requiring a case founded on “exceptional circumstances”; however, in Barakat v Bazdarova, after referring to the leading authorities, including Regency Media,the Court found it unnecessary to determine how the discretion should properly be described.

17. That view is understandable; if the rule is to apply in the “ordinary case”, so that to order otherwise requires identification of circumstances which take the case out of the ordinary, and thus might be described as “extra-ordinary”, there would seem to be no harm in describing such a case as “exceptional”. The question is not really one of semantics, but rather the readiness of the court to otherwise order. What is clear, however, is that the reasonableness of the offeree in rejecting the offer will not of itself justify a departure from the ordinary costs rule.

18. In Maitland Hospital v Fisher[No 2], dealing with the predecessor to the current rule, the Court stated that one of the objects of the rule was:

“To indemnify the plaintiff who has made the offer of compromise, later found to have been reasonable, against the costs thereafter incurred. This is deemed appropriate because, from the time of the rejection or deemed rejection of the compromise offer, notionally the real cause and occasion of the litigation is the attitude adopted by the defendant which has rejected the compromise. In such circumstances, that party should ordinarily bear the costs of litigation.”

19. The same idea may be expressed in terms of the general rule, now contained in UCPR r 42.1, that costs should follow the event “unless it appears to the court that some other order should be made as to the whole or any part of the costs.” Following an offer of compromise, “the event” is redefined as whether or not the offeror obtains a better result than that proposed in the offer. So understood, not only does r 42.14 give effect to a similar principle as the general rule in r 42.1, but the structure of the rule is similar. Thus, the power is to be exercised in a particular way, unless the court exercises its discretion to order otherwise.

20. Reasons why the court may order otherwise under r 42.1 are generally to be found in the nature of the proceedings or the manner in which they have been conducted by the successful party. The fact that an adverse costs order will cause hardship to the unsuccessful party, and that the unsuccessful party had reasonable grounds on which to defend the proceedings, will not be sufficient to resist the usual order. So they should not be sufficient to avoid the usual order under r 42.14.

72. Mr Birtles made reference to some additional principles in relation to the exercise of the discretion to “order otherwise”, in particular referring to Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248 (Croghan) at [11]-[13] per Meagher JA. Although, in that case, the Court of Appeal was concerned with the provisions of r 42.15 to “order otherwise”, there is no suggestion that the statement of principles by Mason P in Morgan v Johnson, to which Meagher JA referred, were not appropriate principles to apply in relation to a discretion under r 42.14 to “order otherwise”.

73. In Croghan, Meagher JA (with whom McCallum JA and Simpson AJA agreed), after referring at [11] to the principles drawn from Morgan v Johnson, stated at [12]-[13] as follows:

12. In ordinary litigation, where the presumption that costs follow the event applies, a significant consideration in determining that an order “otherwise” is justified is whether in the circumstances the offeree acted reasonably in rejecting the offer, although it is recognised that it may not be sufficient to justify such an order that the offeree reasonably believed at the time that it was justified in rejecting the offer: see New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100 at 102; The Uniting Church in Australia Property Trust (NSW) v Takacs (No 2) [2008] NSWCA 172 at [15], [18], [31]; Leach v Nominal Defendant (QBE Insurance (Australia) Limited) (No 2) [2014] NSWCA 391 at [48]; Aukuso v Tahan (No 2) [2018] NSWCA 302 at [60]-[62]. A similar approach is taken to the exercise of the costs discretion in the face of the rejection of an informal offer, although in such a case there is no presumption that the offeree who does not accept, and does not obtain a more favourable judgment, will pay indemnity costs from the date of the offer: Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 at [25]; Miwa at [8]; and Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268 at [32]-[36], [60].

13. In Fairall v Hobbs (No 2) [2017] NSWCA 133, where it was accepted that the presumption in r 42.15 might be displaced “by demonstrating that the rejection of the offer was reasonable”, the Court described the matters relevant to such an assessment as including:

“[15] … where the full parameters of the dispute are still uncertain at the time of the offer: Equity 8 Pty Limited v Shaw Stockbroking Limited [2007] NSWSC 503 at [42]; or where the offeror’s case changes after the offer: South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [85]; or where all relevant evidence has not been served before the offer: Vale v Eggins (No.2) [2007] NSWCA 12 at [22].”

Nature and scope of an estate representative’s role bearing upon costs

Types of representatives

74. Whilst broad propositions might from time to time be able to be made regarding the character of a person or entity’s rights and obligations in representing an estate, it is commonly the case that, for the purposes of particular questions in legal proceedings, it is necessary to make distinctions between types of representatives to properly understand the specific obligations and permissions that a particular representative may have.

75. The different types of representation of an estate are broad in number. They include descriptive and, at times, technical terms such as “representative”, “legal personal representative”, “executor”, “administrator”, “interim administrator”, “representative by court order” and “executor de son tort”.

Sources of a representative’s obligations and entitlements

76. To say that someone is a representative of a deceased estate of itself does not provide clarity as to the nature of that representative’s functions, obligations, responsibilities, duties, disabilities, powers, rights, remedies, protections, permissions and entitlements (for convenience I will refer to all such terms describing the scope and nature of an estate representative’s role as “obligations and entitlements”).

77. Common sources of a representative’s obligations and entitlements include: (a) the trust instrument (if any), including a Will; (b) a court order; (c) statutory provisions; and (d) the general law.

78. It is evident from what I have just mentioned that, although there may be similarities between the sorts of entitlements and obligations that a representative of an estate may have, the precise nature of them will be case specific.

79. If the representative is appointed under a trust instrument or Will, there may be great detail in some cases or little detail in other cases indicating whether a representative has a particular entitlement or obligation.

80. If the representative is appointed by court order, clarity as to whether a representative has a particular entitlement or obligation will depend upon the precision of the terms of the court order.

81. To give an example of the importance of that proposition, one may look no further than court orders in which special grants of administration are made.

82. Historically, many grants were made in a context where the application was for a type of grant by reference to a Latin description. Thus, there may be special grants of administration ad colligenda bona defuncti (where it is necessary to protect an estate or assets of an estate prior to probate or administration), administration ad litem (where the issue is an appointment of a representative to institute, defend or participate in legal proceedings prior to a grant of probate or letters of administration), and administration durante absentia (where an appointment is necessary to cover the situation in which an executor or administrator is absent from the jurisdiction and there is a temporary need to administer an estate).

83. If orders were made by reference to such descriptions, the position regarding the nature and scope of the representative’s obligations and entitlements were left to understandings of the nature and scope of the role by reference to the general law.

84. Modern practice, at least in New South Wales, is that orders are made defining the scope of obligations and entitlements so that the extent of the grant given is not defined by reference to the Latin appellation given to such grant, but rather by reference to the precise wording of the court order making the grant.

85. By contrast (and I will return to this below), the scope of the obligations and entitlements of representatives appointed under UCPR r 7.10(2(b) is generally not defined with anything like the level of detail regarding the obligations and entitlements of administrators under a special or limited grant of administration.

86. Precision regarding the obligations and entitlements of representatives is important for many reasons. Relevantly, precision is important in relation to costs in two respects, namely (a) whether a representative has any entitlement to an indemnity for costs, and (b) the capacity of the representative to seek direction or advice from the Court regarding the expenditure of estate funds on costs.

Costs – indemnity

87. The mere fact that a person is appointed as a representative of an estate and engages in legal proceedings does not entitle the person to an order for costs out of an estate fund.

88. Generally, whether costs of litigation are permitted to be payable out of an estate fund is determined by or subject to court order. The principles applicable to this issue have often arisen out of a context involving trustees, as opposed to representatives more generally.

89. Broadly speaking, two requisites justify such an order, namely that the expenditure resulted in a benefit to the common property represented by the fund, and that the expenditure has been “properly” or “reasonably” incurred: Dal Pont – Costs at 306 [10.1], citing inter alia Permanent Trustee Co v Redman (1917) 17 SR (NSW) 353 at 360 per Harvey J and Nobarani v Mariconte (No 2) [2018] HCA 49; (2018) 360 ALR 390 at [2]; Cardaci v Cardaci [2023] WASCA 158 (Cardaci) at [570] per curiam (Buss P, Murphy and Mitchell JJA); see also J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis) (Jacobs’) at [21-07]. There are some nuances on what the words “properly” or “reasonably” mean: Jacobs’ at [21-07]. For example, the phrase “properly incurred” has been said to be equivalent to “not improperly incurred”: Re Beddoe; Downes v Cottam [1893] 1 Ch 547 (Beddoe) at 558 per Lindley LJ. Bowen LJ stated that “properly” means reasonably as well as honestly incurred: Beddoe at 562.

90. The notion of indemnity is usually discussed by reference to rights of “reimbursement” and “exoneration”. If the trustee or fiduciary has discharged the liability out of his individual property, he is entitled to reimbursement. If he has not discharged it, he is entitled to apply the trust property (i.e. directly) in discharging it by exoneration: ChiefCommissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; [1998] HCA 4 (Buckle) at [47], citing Austin Scott and William Fratcher, Scott on Trusts (4th ed, 1988, Little, Brown and Company), Vol 3A at §246.

91. The entitlement to reimbursement and exoneration is said to be the price paid by the beneficiary for the gratuitous and onerous services of trustees: see Cardaci at [569], citing Buckle at [49]. The power of exoneration is a power to use trust funds to discharge debts that were properly incurred in the administration of the trust: Cardaci at [569], citing Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20 (Carter Holt) at [31] per Kiefel CJ, Keane and Edelman JJ.

92. The distinction between the right of reimbursement and exoneration may be important in relation to rights of subrogation: see Infigo II Pty Ltd v Linmas Holdings Pty Ltd [2023] NSWSC 755 at [74]. The purpose of the power of exoneration is not to exonerate the trustee’s personal estate unconditionally. It is to exonerate the trustee’s estate only from authorised liabilities incurred in the course of the business of the trust: Carter Holt at [40], [44] per Kiefel CJ, Keane and Edelman JJ.

93. The costs of representatives in adversarial proceedings may or may not be payable out of an estate. The rationale for indemnification in respect of costs or litigation expenses is that the trustee or fiduciary who has incurred the expense has not been acting for his or her own benefit, but for the benefit of the beneficiary or the trust estate in question: see Cardaci at [569], citing Wishart v Castlecroft Securities Ltd [2009] CSIH 65; 2010 SC 16 at [71] per Lord Reed for the Court; Rattigan v Hanly [2020] NSWSC 1722 (Rattigan) at [66] per Hallen J.

94. A representative who unsuccessfully prosecutes or defends a suit on behalf of an estate will not necessarily be ordered to pay costs from his or her own pocket. The Court has a discretion to order that the costs be paid either directly from the estate fund, or otherwise that the representative’s liability be indemnified from the estate fund: cf Dal Pont – Costs at 307 [10.4].

95. However, representatives are expected not to lightly engage in litigation that may or will incur costs that diminish the trust property, and ought only to do so if the circumstances justify: cf Dal Pont – Costs at 308 [10.5].

96. There are statutory and general law sources of indemnity which, so far as possible, should be read coherently: e.g. Warton v Yeo [2015] NSWCA 115; (2015) 15 ASTLR 462 (Warton) at [3] per Basten JA.

97. Under the Trustee Act, there is an implied right of indemnity. Section 59 provides:

59   Implied indemnity

(1)  A trustee shall be chargeable only for money and securities actually received by the trustee, notwithstanding the trustee’s signing any receipt for the sake of conformity.

(2)  A trustee shall be answerable and accountable only for the trustee’s own acts, receipts, neglects, or defaults, and not for those of any other trustee, nor for any banker, broker, or other person with whom any trust moneys or securities may be deposited, nor for the insufficiency or deficiency of any securities, nor for any other loss, unless the same happens through the trustee’s own wilful neglect or default.

(3)  Nothing in subsections (1) and (2) shall prejudice the provisions of the instrument, if any, creating the trust.

(4)  A trustee may reimburse himself or herself, or pay or discharge out of the trust property all expenses incurred in or about execution of the trustee’s trusts or powers.

(5)  This section applies to trusts created either before or after the commencement of this Act.

98. However, the right of indemnity under s 59(4) of the Trustee Act is to a “trustee” as defined for the purposes of the Trustee Act.

98. Section 5 of the Trustee Act defines “trustee” as having “a meaning corresponding with that of trust; and includes legal representative and the NSW Trustee and a trustee company.”

99. That definition links with the definition of “trust”, also found in s 5 of the Trustee Act, as follows:

Trust does not include the duties incident to an estate conveyed by way of mortgage; but, with this exception, includes implied and constructive trusts, and cases where the trustee has a beneficial interest in the trust property, and the duties incident to the office of legal representative of a deceased person.

101. A “legal representative” is defined as meaning “executor or administrator”. The terms “executor” and “administrator” are, in turn, defined in s 5 as follows:

1. “executor” means “the executor to whom probate has been granted and includes an executor by right of representation”; and

2. “administrator” means “administrator within the meaning of the Probate and Administration Act 1898 and includes the NSW Trustee acting as collector of an estate under an order to collect”.

102. Under the PAA, an “administrator” includes the NSW Trustee and any other person to whom administration as defined in the Act is granted: s 3 PAA. In turn, the definition of “administration” is inclusive, but principally is defined by reference to a grant of the Court: s 3 PAA.

103. It is evident from the text that the definition of “trustee” in s 5 of the Trustee Act is an extended definition of what is ordinarily encompassed under the general law meaning of trustee, at least to the extent that it includes “executors” and “administrators” as defined: see also Nadilo at [40] per Leeming JA; Katsoulas v Kritikakis; Katsoulas v Apostolatos [2024] NSWSC 67 (Katsoulas) at [30] per Leeming JA (sitting at first instance).

Costs – options for estate representatives

104. Generally speaking, an estate representative will have a number of options regarding coverage for legal costs.

105. Relevantly, these include positively obtaining an indemnity either from beneficiaries or seeking judicial advice.

106. In Walker v Harwood, Basten JA stated the following in the context of discussing the power to order “otherwise” under UCPR r 42.14(2):

21. It may be accepted that the role of executors, particularly where the executors have no personal interest in the defence of the will, may be relevant to the possible exercise of the discretion to order otherwise. Nevertheless, there is no general principle that r 42.14 does not apply in the case of a dispute over the validity of a will; if the executors do not wish to be personally at risk, there are protective strategies available to them. For example, they may seek an indemnity from sui generis beneficiaries, or, being a trustee within the terms of the Trustee Act 1925 (NSW), may seek advice from the court, pursuant to s 63 of that Act.

Costs – indemnity not readily tied to outcome for certain estate representatives

107. In estate litigation there are a number of circumstances in which estate representatives may not be entitled to indemnity from the estate. The matters that bear upon the issue of whether a representative is entitled to an indemnity will include, generally speaking: any relevant statutory provisions; the nature of the proceedings; the character of the representative’s role in the proceedings; and the reasonableness of the representative’s conduct.

108. It is evident from what has been said above, regarding indemnification of a trustee out of an estate, that at least one aspect of a party acting as a type of representative is that an entitlement or permission to indemnity is not necessarily precluded by an unfavourable outcome of the proceedings.

109. The UCPR contain provisions in relation to the payment of costs of trustees, and identify two relevant exceptions to a trustee’s right of indemnity (or exoneration, as the case may be), relevantly as follows:

42.25   Costs of trustee or mortgagee

(1)  Subject to subrule (2), a person who is or has been a party to any proceedings in the capacity of trustee or mortgagee is entitled to be paid his or her costs in the proceedings, in so far as they are not paid by any other person, out of the fund held by the trustee or out of the mortgaged property, as the case may be.

(2)  The court may order that the person’s costs not be so paid if—

(a)  the trustee or mortgagee has acted unreasonably, or

(b)  in the case of a trustee, the trustee has in substance acted for his or her own benefit rather than for the benefit of the fund.

110. The noun “trustee” is not per se defined in the UCPR or the CPA.

111. Generally, where a word used in a statute has an established legal meaning, it is presumed that it is used with that meaning unless the context indicates a different meaning: Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2020, Lawbook Co.) (Herzfeld and Prince) at [2.170]. For example, as a general rule, a term such as “trust” is to be taken, unless a contrary intention appears, as having been used by the legislature in its legal and technical sense: Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59 at [45].

112. Where a statute refers to a common law concept, it generally picks up the caselaw concerning that concept as it develops from time to time: Herzfeld and Prince at [2.100]; see e.g. Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42 at [23] per French CJ, Gummow, Hayne, Crennan and Bell JJ (use of the term “charitable” was to be understood by reference to its source in the general law regarding charitable trusts).

113. Broadly speaking, with one exception, there does not appear to be any contrary intention apparent which indicates a meaning of “trustee” in the UCPR and CPA different to its established legal meaning at general law. The one exception is in UCPR Part 55 (which deals with procedure in respect of particular applications under the Trustee Act), in which the text, context and purpose all point to a construction that in Part 55 the noun “trustee” should be understood as “trustee” as defined in s 5 of the Trustee Act. Thus, subject to the obvious exception of Part 55, and subject to any specific text and contextual aspects of the rules, generally speaking “trustee” as used in the UCPR and the CPA will be construed in accordance with its legal meaning at general law.

114. The general law position regarding indemnity is outlined above. The parties also referred to the exposition by Austin J in Drummond v Drummond [1999] NSWSC 923 (Drummond) at [43], in which his Honour stated:

43. In Miller v Cameron (1936) 54 CLR 572, 578, Latham CJ explained that ‘as a rule, a trustee is allowed his costs out of the trust estate if his conduct has been honest, even though it may have been mistaken.’ In Re Weall; Andrews v Weall (1889) 42 ChD 674, 677, Kekewich J spoke of the ‘tenderness which the Court is anxious to exhibit towards trustees honestly exercising discretion in discharge of their duties, often difficult and still more often thankless.’ In Re Jones; Christmas v Jones [1897] 2 Ch 190, 197 the same judge said that ‘a man who fulfils the difficult duties of an administrator, executor or trustee is, in common sense and common justice, entitled to be recouped to the very last penny everything that he has expended properly - that is to say, without impropriety - in his character of administrator, executor or trustee …’. Thus it is normally the case that an executor who commences or defends an action in the capacity of executor is entitled to be indemnified out of the estate for the costs incurred in doing so, even if the litigation is unsuccessful, the executor’s conduct is found to have been mistaken, and the other party in the litigation is held to be entitled to an order for costs.

Costs – indemnity “exceptions”

115. Whether the cost or expense which is the focus of the indemnity sought is “properly” or “reasonably” incurred is to be assessed by reference to the particular circumstances and to the duty with which the trustee was required to comply or the power the trustee was intending to exercise in the execution, performance or administration of the trust: see Cardaci at [570], citing Nolan v Collie (2003) 7 VR 287; [2003] VSCA 39 at [51] per Ormiston JA and Jacobs’ at [21-07].

116. Further, whether the trustee has incurred a liability in the performance of the trust depends upon that being the correct legal characterisation of what occurred. The characterisation cannot be determined by the label or description given to the relevant conduct by the parties to it. Rather, it depends upon whether the conduct or action was, or must be taken to have been, undertaken in the proper execution of the trust: TFML Ltd v MacarthurCook Fund Management Ltd [2013] NSWCA 291 at [70] per Meagher JA (McColl and Macfarlan JJA agreeing).

117. This suggests that the approach to determining these questions is case specific and, subject to any applicable statutory provisions, not addressed technically but substantively. I will consider this approach, derived as it is from the context of trustees, in reference to estate representatives more generally below.

118. As will be seen below, there are statutory provisions and caselaw which refer to what are described as the “general position” and “exceptions” to that general position in respect of an entitlement to indemnity. It may be that, on the facts of any given case, what is contended to be an exception is not a true exception per se but simply a recognition that the conditions enlivening the general position are not satisfied.

119. In this case, submissions were made at least in part by reference to what was said to be a “general position” and “exceptions” to that position. In light of that, it is convenient to make some reference to the “exceptions” in statutory provisions and those identified in submissions under the general law.

UCPR provisions

120. The two exceptions to the indemnity specified by UCPR r 42.25 are where the trustee has (a) acted unreasonably or (b) “in substance” acted for his or her own benefit rather than for the benefit of the fund: r 42.25(2) UCPR.

General law exceptions

121. A number of circumstances give rise to exceptions at general law which may, in any given case, preclude an estate representative from obtaining an indemnity from the estate or, conversely, allow a person acting in his or her private capacity to recoup costs from the estate.

122. Caselaw at times has sought to distinguish between types of disputes for such purposes. Thus, for example, in Alsop Wilkinson (a firm) v Neary [1996] 1 WLR 1220 (Alsop Wilkinson) Lightman J identified three categories of litigation, being a “trust dispute”, a “beneficiaries dispute” and a “third party dispute”, in which trustees may become involved.

123. Lightman J stated at 1223H-1224C:

Trustees may be involved in three kinds of dispute. (1) The first (which I shall call “a trust dispute”) is a dispute as to the trusts on which they hold the subject matter of the settlement. This may be “friendly” litigation involving e.g. the true construction of the trust instrument or some other question arising in the course of the administration of the trust; or “hostile” litigation e.g. a challenge in whole or in part to the validity of the settlement by the settlor on grounds of undue influence or by a trustee in bankruptcy or a defrauded creditor of the settlor, in which case the claim is that the trustees hold the trust funds as trustees for the settlor, the trustee in bankruptcy or creditor in place of or in addition to the beneficiaries specified in the settlement. The line between friendly and hostile litigation, which is relevant as to the incidence of costs, is not always easy to draw: see In re Buckton; Buckton v Buckton [1907] 2 Ch 406. (2) The second (which I shall call “a beneficiaries dispute”) is a dispute with one or more of the beneficiaries as to the propriety of any action which the trustees have taken or omitted to take or may or may not take in the future. This may take the form of proceedings by a beneficiary alleging breach of trust by the trustees and seeking removal of the trustees and /or damages for breach of trust. (3) The third (which I shall call “a third party dispute”) is a dispute with persons, otherwise than in the capacity of beneficiaries, in respect of rights and liabilities e.g. in contract or tort assumed by the trustees as such in the course of administration of the trust.

124. Lightman J went on to distinguish the position of whether costs would ordinarily be expected to come out of an estate having regard to the characterisation of the dispute as such. For example, Lightman J indicated that a “beneficiaries dispute” is regarded as ordinary hostile litigation in which costs follow the event and do not come out of the trust estate: Alsop Wilkinson at 1224G.

125. There is no doubt that in some cases judges have found it helpful to assess the question of indemnity by reference to Lightman J’s categories: e.g. Rattigan at [62]-[63]. Indeed, the characterisation has been used for the purposes of determining whether judicial advice should be given: e.g. Application of Uncle’s Joint Pty Ltd ACN 148 176 792 [2014] NSWSC 321; (2014) 12 ASTLR 487 (Uncle’s Joint) at [22]-[23] per Brereton J (as the Commissioner then was). However, the categorisation was not the subject of submissions here.

126. In this case, the following two exceptions were the subject of submissions:

1. unreasonable conduct, impropriety or misconduct on the part of the estate representative (impropriety exception); and

2. the representative acting in his, her or its own interests (personal interest exception).

127. In addition, two further matters were raised in submissions, namely:

1. where the cause or responsibility for the litigation can fairly be laid at the feet of the deceased, some or all of the costs incurred may be ordered to be paid out of the estate (cause exception); and

2. if the circumstances in which a testamentary instrument was created are such as to reasonably invite an investigation by the Court, the costs of that exercise may be left to be borne by those who respectively incur them (investigation exception).

128. On one view, the latter are more appropriately considered exceptions to the rule that costs follow the event (UCPR r 42.1), as opposed to UCPR r 42.25 or its general law equivalent. However, for present purposes that need not be debated.

129. What can be said is that the cause exception and the investigation exception commonly arise in probate litigation, although they are not necessarily limited to probate litigation. Further, as I explained in Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 (Guamani), caselaw clearly indicates that there is greater flexibility in cost outcomes in probate litigation than merely those two exceptions: see Guamani at [185]-[192].

130. The decision of Austin J in Drummond is a convenient source for explaining the impropriety exception, the personal interest exception and the cause exception. His Honour stated at [45], [47] and [49]:

45. The first is the sub-exception for ‘impropriety’. As Kekewich J made clear in Re Jones, cases of impropriety include an executor taking or defending proceedings in breach of trust, or conducting the proceedings in such a way that the Court, on a general view of the case, regards the executor’s conduct as ‘not honestly brought forward’ ([1897] 2 Ch 190, 198). Additionally, recourse to the estate may be denied to an executor ‘where the claim is of monstrous character, that is, one which no reasonable man could say ought to have been put forward’ (at 198). In Re Weall the trustees allowed a solicitor to deduct fees which were not properly chargeable to the life tenant from the rental income of the estate. Kekewich J observed that while mistakes or errors in judgment would not disentitle the trustees to an indemnity, the beneficiaries were entitled to expect ‘reasonable prudence’ of the trustees (42 ChD at 678-9).

…

47. Secondly, the rule which gives an executor the prima facie entitlement to be indemnified out of the estate for costs relates only the costs incurred in the administration and distribution of the estate. Such costs are to be distinguished from costs incurred by an executor in furtherance of a personal interest: Miller v Cameron (1936) 54 CLR at 578-9; Re Jones [1897] 2 Ch at 197-8; Plimsoll v Drake (No.2) (Supreme Court of Tasmania, Zeeman J, unreported, 8 June 1995). Executors who pursue personal interests in litigation are ‘not fighting for the estate any more than if they were not executors at all’: Skrimshire v Melbourne Benevolent Asylum (1894) 20 VLR 13, 18 per Madden CJ. An executor who prosecutes or defends proceedings in the capacity of, say, creditor or beneficiary of the estate rather than in the capacity as executor cannot expect to recoup the costs of litigation from the estate simply on the basis that he or she is also an executor. In Miller v Cameron Latham CJ took the view that a trustee who defended an action for his removal was thereby representing his own interests and not those of the trust estate. In Plimsoll v Drake Zeeman J reached a similar conclusion where a trustee unsuccessfully asserted the right to demand a release before distributing the trust estate to the beneficiaries.

…

49. There is another exception to the normal rule that costs follow the event, which is arguably relevant in the present case. The Court may on some occasions permit a person who conducts litigation in a private capacity to recoup costs from a trust fund or estate. The principles are set in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate at 437-441. The situation which is arguably relevant to the present case is where the litigation has been caused by the conduct of the testator. In Brown v McEncroe (1890) 11 LR (NSW) Eq 134 the plaintiffs propounded a will which treated the deceased’s widow harshly. After she died, the administrator of her estate contested the application for probate on the ground of testamentary incapacity. Although there was evidence that the testator had been an alcoholic, the Court held that the challenge to his testamentary capacity had failed. However, Owen CJ in Eq held that the defendant’s costs should be recovered out of the testator’s estate. The testator, by reason of his conduct, was considered to be the cause of the litigation which occurred after his death (at 145).

131. His Honour’s statement of principles at [43]-[47] was approved in Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic (No 3) [2017] NSWCA 109 at [14] per Payne JA (Ward (as her Honour then was) and Gleeson JJA agreeing), and in Nadilo at [40] per Leeming JA.

132. Both counsel referred to other cases bearing upon these exceptions.

133. Ms Fendekian also made reference to authority addressing exceptions where an executor is not entitled to be indemnified from the estate on the basis of any impropriety or misconduct on the part of that party whether an executor per se or acting as an executor. However, there was no suggestion on the part of Mr Birtles or otherwise that the defendant had misconducted himself in the defence of the proceedings within the terms of that exception.

Costs – judicial advice

134. The Supreme Court has equitable and statutory jurisdiction to give advice to trustees.

135. The Court’s equitable jurisdiction to give advice is derived from the practice of the Court of Chancery under the general law in giving directions to those entrusted with the administration of property under the control of the Court – affording special assistance to those, such as trustees, who have no direct pecuniary interest in a fund but have assumed the onerous obligation of administering it for the benefit of others: see e.g. Re Permanent Trustee Australia Ltd (1994) 33 NSWLR 547 at 548A-B per Young J (as his Honour then was); Application of Macedonian Orthodox Community Church St Petka Inc (No 2) (2005) 63 NSWLR 441; [2005] NSWSC 558 at [23] per Palmer J; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 (the Macedonian Church Case) at [34] fn 47.

1. the defendant did nothing to seek to alter his position under the last Will. He did not commence the proceedings, nor did he file any cross-claim seeking to enhance his position under the estate, make any family provision claim or otherwise do anything to pursue his own interest. Rather, all he did was seek to uphold the last Will of the deceased: T 9.23-.37.

324. In addition, Ms Fendekian referred to the decision of Kenneth Martin J in Lee v Australian Executor TrusteesLtdas trustee of the estate of the late Ronald William Lee (No 4) [2021] WASC 257, which also concerned the defence of an estate against a proprietary estoppel claim. She noted that the Court in that case held that it was perfectly appropriate to make an order that the costs of the proceedings of the first defendant, being the trustee, be paid from the estate on an indemnity basis: T 9.42-.49. However, in that case the first defendant was a professional trustee and there was no suggestion that it was personally interested in the property the subject of the claim.

325. In substance, Ms Fendekian submitted that there is a distinction to be made between cases where the representative pursues his or her own interests as opposed to protecting or defending the estate and upholding the Will: T 10.23-.30. Indeed, Ms Fendekian submitted that there was a stark contrast between the positions of the plaintiff and the defendant, indicating that, although they were both executors of the estate (strictly speaking, instituted or nominated executors), the defendant was “merely seeking to uphold the Will of the deceased” whereas the plaintiff “was actively pursuing his own interests against the estate”: T 11.21-.32.

326. A difficulty with that submission is that there is not the remotest suggestion that the plaintiff was pursuing his claims in a representative capacity, whereas there is a question as to whether, substantively, the defendant was defending the proceedings in his own interests while purporting to act in a representative capacity.

Plaintiff’s submissions

327. Mr Birtles submitted that the way in which the hearing was conducted was as an adversarial contest, rather than the defendant putting his position from a neutral representative context: T 8.30-.33.

Defendant’s appointment and orders on terms regarding costs

328. In light of Ms Fendekian’s submissions regarding the defendant being indemnified out of the estate, I sought to understand the context in which the appointment had been made.

329. On the costs hearing, I enquired of counsel regarding the order made that the defendant represent the estate pursuant to UCPR r 7.10.

330. On briefly looking at the file, I located an email dated 28 February 2023 from Ms Nunn to the Associate to Hallen J, copying in Mr Wilson (the defendant’s solicitor). The email per se did not shed any particular light as to the relevant circumstances bearing upon the order of appointment. Mr Birtles observed that the appointment was made in a context in which the parties’ joint application for probate had not progressed due to the rectification issue and, in those circumstances, indicated that it was necessary for there to be an order. Ms Fendekian had recollection that the issue was first raised or agitated by the plaintiff and that, from the defendant’s point of view, the order “would merely formalise what was already the practical reality of the litigation”: T 2.

331. I have examined the Court file to see whether there are any further matters apparent from the orders made in the proceedings, or any agreed position as between the parties, which bear upon the UCPR r 7.10 appointment. In this respect I note the following.

332. As noted above, the proceedings were commenced by statement of claim filed on 27 May 2022. The statement of claim contained various claims for relief, including relevantly an order pursuant to UCPR r 7.10 that the defendant be appointed to represent the estate for the purposes of the proceedings (prayer 2 of the relief claimed).

333. On 18 July 2022, the defendant filed a defence which relevantly denied material allegations as I have referred to above.

334. The first formal listing of the matter before the Court occurred on 18 November 2022, approximately seven months after the proceedings had been commenced. During that seven month period, there was no formal order for appointment of anyone to represent the estate.

335. On that occasion, Mr Birtles appeared for the plaintiff and Ms Fendekian appeared for the defendant. No orders were made for formalising the appointment of any person to represent the estate.

336. The procedural orders included an order directing the parties to provide, by 4 pm on 25 November 2022, a joint memorandum stating how the interim administration of the estate was to be conducted pending the determination of the rectification suit: Order 1 Associate’s Record of Proceedings (ROP). The matter was adjourned to 16 December 2022.

337. On the Court file there is a joint memorandum, signed by the respective solicitors for the parties (Ms Nunn and Mr Wilson), which is self-evidently a document prepared pursuant to the above-mentioned order made on 18 November 2022 (Joint Memorandum).

338. The Joint Memorandum sets out the joint position of the parties regarding administration of the estate under ten headings, being: (1) general powers; (2) real property; (3) bank accounts; (4) estate income and expenses; (5) expenses pertaining to assets the subject of specific gifts, being cattle, plant and equipment; (6) interim distributions; (7) probate application costs; (8) defendant’s legal costs of the proceedings; (9) reimbursement of other expenses; and (10) resolution of any disagreements.

339. Certain terminology within the document indicates that the position set forth in the Joint Memorandum records a form of agreement between the parties. Thus, clause 1.4 states: “[t]he parties agree to the following protocol with respect to the interim administration and distribution”. Further, the terminology includes references to things the parties “will do”, including that they will open an estate bank account, instruct Doyle Wilson to pay funds into that account and instruct Gowing Advisory in respect of the estate financial accounts.

340. The provisions regarding the defendant’s legal costs of the proceedings were as follows:

8. Defendant’s Legal Costs of the Proceedings

8.1. That upon Doyle Wilson producing invoices to Kevin Wayne Reeves for acting on his behalf in proceedings 2022/00153417, these invoices are to be paid out of the trust account of Doyle Wilson within 5 business days.

8.2. That upon each occasion that an invoice from Doyle Wilson acting for Kevin Wayne Reeves in the proceedings 2022/00153417 is paid Doyle Wilson will, within 7 days, provide to Mullane & Lindsay acting on behalf of Russell Robert Reeves, notice in the form of a summary of the total amount of the invoice, identifying the professional fees (including hours of work and hourly rates charged) and itemisation of disbursements.

8.3. The parties record that clause 8 of this Agreement is subject to:

a. Either party having liberty to apply to the Supreme Court for a different costs order in proceedings 2022/00153417 at the conclusion of the proceedings; and

b. Kevin Wayne Reeves or Russell Robert Reeves reimbursing the deceased’s estate for any legal costs paid from the estate in the event that a different costs order is later made.

341. Clause 10 of the Joint Memorandum addressed “Resolution of any Disagreements” and contained provision for resolving such disagreements. However, it expressly excluded any disagreement in relation to payment or reimbursement of legal costs referred to in paragraphs 7 and 8 of the Joint Memorandum.

342. In relation to the payment of the defendant’s legal costs, the contemplation was that the defendant’s solicitors would issue invoices to him which would be paid out of their trust account within five business days and, on each occasion that such a payment was made, the defendant’s solicitors would then provide to the plaintiff’s solicitors a summary of the total amount paid, identifying the professional fees and itemisation of disbursements.

343. On 16 December 2022, Ms Nunn and Mr Wilson filed with the Court proposed short minutes of order.

344. On 19 December 2022, Hallen J made a number of orders. Relevantly, his Honour made a form of interim grant of administration up to and including 19 June 2023 in favour of Ms Whitley, with specific but limited powers, and orders and notations providing for the recording of income of the estate and arrangements for payment of her fees: Orders 1-4 ROP.

345. In respect of the defendant’s legal fees in the proceedings, Hallen J’s orders relevantly contained the following notations:

5. Notes the agreement of the parties that:

(a) Initially, an amount of $125,000 be paid from the estate towards the Defendant’s costs in proceedings 2022/00153417 within 7 business days of the date of the making of these orders and notations.

(b) The Defendant may apply to the Supreme Court, at any time, to increase the amount referred to in (a) as may be required.

(c) Either party has liberty to apply to the Supreme Court for a different costs order in proceedings 2022/00153417 at the conclusion of the proceedings; and

(d) Kevin Wayne Reeves or Russell Robert Reeves shall reimburse the estate for any legal costs paid from the estate in the event that a different costs order is made.

6. Notes that nothing in these orders otherwise authorises the interim Administrator to make a distribution of the estate of the deceased, or any part thereof, without the leave of the Court.

346. On 30 January 2023, there was a further Court listing in which directions were made.

347. On 28 February 2023, Ms Nunn and Mr Wilson sent proposed short minutes of order to the Court which included an order that the defendant be appointed to represent the estate of the deceased for the purposes of the proceedings, pursuant to UCPR r 7.10(2)(b). There was also a proposed order (pursuant to order 5(b) of the orders made on 19 December 2022) for an amount of $220,000 to be paid from the estate of the deceased towards the defendant’s costs in the proceedings on terms.

348. On 2 March 2023, Hallen J made the following orders and notations in chambers:

1. Notes that:

(a) The parties are the sole executors named in the Will dated 22 October 2010 of Gloria Dawn Reeves (“the deceased”).

(b) The parties have contemplated that they will obtain Probate of the deceased’s Will as executors named in the deceased’s Will and have made a joint uncontested application for Probate in proceedings 2021/187436.

(c) In the amended Statement of Claim filed in these proceedings on 19 January 2023, the Plaintiff seeks rectification of the deceased’s Will.

(d) The Court cannot admit the deceased’s Will, in its present form, to Probate, until such time as the rectification proceedings are determined, as, if rectification were ordered, it would then be necessary to revoke the grant and issue a fresh grant of the deceased’s Will, as rectified.

(e) As the parties are the principal beneficiaries named in the deceased’s Will, and as the Plaintiff is the party seeking rectification, the parties agree that the Defendant should be appointed as a representative of the deceased's estate for the purposes of the proceedings.

(f) The Defendant consents to be appointed.

(g) On 19 December 2022, the Court with the agreement of the parties appointed Katelin Whitley as the interim administrator of the deceased’s estate up to and including 19 June 2023 or earlier grant of Probate.

(h) The rectification proceedings are listed for hearing before Meek J on 11-15 September 2023.

2. Orders pursuant to the Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(2)(b), that the Defendant be appointed to represent the estate of the deceased for the purposes of these proceedings.

3. Orders, with the consent of the parties, that, in addition to the order in Paragraph 5(b) of the orders made on 19 December 2022, an amount of $220,000 be paid from the estate of the deceased towards the Defendant’s costs of these proceedings on the basis that those costs are paid, initially, out of the Defendant’s share of the estate with liberty to either party to apply to the Court for a different costs order at the conclusion of the proceedings.

4. Orders that the appointment of Katelin Whitley as interim administrator of the deceased’s estate be extended until further order of the Court or the issue of the grant of Probate of the deceased’s Will whichever is the earlier.

349. On 20 March 2023, the defendant filed a notice of motion seeking an order that the Court grant leave to Ms Whitley to make an interim distribution to the defendant in the amount of $200,000. The notice of motion was supported by an affidavit of Mr Wilson affirmed 20 March 2023, in which he indicated inter alia that, based on information received from Ms Whitley, the balance of the estate trust account at 31 January 2023 was $1,378,675.51, with additional funds to be received from Westpac.

350. On 27 March 2023, the Court ordered as follows:

1. Notes the agreement of the parties that they will instruct Ms K Whitley the interim administrator of the estate of the deceased to make an interim distribution from the estate of $200,000 to the Defendant and $100,000 to the Plaintiff out of the estate of the deceased.

2. Grants leave to Ms Whitley to make those interim distributions.

3. Orders that the costs of the notice of motion filed on 20 March 2023 be costs in the cause.

351. On the third day of the hearing (13 September 2023), it became evident that the hearing would not be concluded within the allotted five days. In that context, Ms Fendekian noted that the interim administrator had taken the position that she was not prepared to allow any distribution from the estate unless it was by the consent of both “executors” (i.e. the parties), and that the plaintiff had not consented to further distributions on a number of occasions. Ms Fendekian foreshadowed that a substantial amount of legal fees had been incurred since March 2023 and the defendant wished to put on an application for a further distribution in respect of expenses and legal fees to be made returnable in October 2023 when the hearing resumed: T 225.24-.50.

352. When I asked Mr Birtles about the position on that occasion, he indicated his understanding or contention that the order under UCPR r 7.10, that the defendant represent the estate for the purposes of the proceedings, was necessary for the estoppel part of the case as a contradictor, rather than any imprimatur for costs of the defence of the proceedings to be borne out of the estate: T 226.17-.29.

353. I indicated that Ms Whitley ought to be asked to give some indication of the amount of funds held, and the parties should confer and discuss whether some agreement could be reached regarding a distribution. If not, the matter would need to be formalised in some way by the filing of a notice of motion and any affidavits in support: T 226.33-.42.

354. I expressly indicated that no party should assume that there would be any necessary entitlement to costs: T 227.2-.3.

355. On 9 October 2023, the defendant filed a notice of motion seeking the following orders:

1. Further to order 6 made on 19 December 2022, the Court grants leave to the Administrator to make an interim distribution of the estate of the late Gloria Dawn Reeves to the defendant in the amount of $100,000.00, within 7 business days.

2. Further to order 5(b) made on 19 December 2022, the Court grants leave to the Administrator to make an interim distribution of the estate of the late Gloria Dawn Reeves towards the defendant’s costs of these proceedings in the amount of $250,000.00, within 7 business days. This payment is to be made on the basis that these costs are paid, initially, out of the defendant’s share of the estate with liberty to either party to apply to the Court for a different costs order at the conclusion of the proceedings.

3. Costs.

356. The notice of motion was supported by an affidavit of Rachel Gleeson (a solicitor for the defendant) affirmed 9 October 2023, in which she indicated inter alia that, based on information received from Ms Whitley, the balance of the estate trust account at 13 September 2023 was $1,061,563.73. The affidavit indicated that, due to the defendant’s financial situation, his legal costs of the proceedings remained unpaid since January 2023 and that his outstanding legal costs were, at the time of preparation of the affidavit, approximately $450,000 inclusive of GST.

357. On 10 October 2023, I made the following orders:

1. Vacates the listing of the notice of motion on 13 October 2023.

2. Lists the notice [of] motion filed on 9 October 2023 before Meek J on 11 October 2023 at 10:00am.

358. On 11 October 2023, I heard the notice of motion and made the following orders:

1. Orders that the amount of $350,000 be paid out of the estate of the late Gloria Dawn Reeves by the interim administrator to the defendant within 7 days, on the basis that the payment is a form of interim distribution out of the defendant’s entitlement in the estate and, accordingly, the amount of the payment must be taken into account in the ultimate administration of the estate by either the interim administrator or whoever ultimately administers the estate and adjustments accordingly made.

2. Notes the defendant has given a direction to pay to his legal representatives and that the payment will be made to the defendant’s legal representatives trust account.

359. I delivered brief reasons for judgment for the orders granting the interim distribution.

Discussion

360. In determining whether the defendant should be indemnified from the deceased’s estate in respect of his liability for costs, I have had regard to the above-mentioned discussion of principles and bear in mind that each case needs to be assessed on its own particular facts.

361. Ultimately, the issue is whether I ought to exercise the discretion under s 98 of the CPA to order the costs of the proceedings to be borne in such way that allows the defendant the requested indemnity for costs out of the deceased’s estate.

362. Further, whilst recognising that the effect of the exercise of my discretion under s 98 of the CPA may displace (to the extent described in the costs order) the statutory order provisions of s 46C(2) of the PAA concerning how testamentary expenses are to be borne, neither Ms Fendekian nor Mr Birtles made any application on behalf of their clients for any other variation of the applicable statutory order as to the assets of the estate which would bear the burden for the discharge of costs, if any, to be paid out of the estate.

363. The purpose of the defendant’s appointment pursuant to UCPR r 7.10(2)(b) was specified in the order as being “to represent the estate of the deceased for the purposes of these proceedings”.

364. It is apparent from the terms of the Joint Memorandum, and orders 5 and 6 of the orders of Hallen J made on 19 December 2022, that the following regime was set up in respect of the legal costs of the proceedings:

1. estate funds would come into the trust account of Doyle Wilson and, provisionally, the defendant’s legal costs of the proceedings would be paid out of the funds held in his solicitors’ trust account, with either party having liberty to apply to the Court for a different costs order at the conclusion of the proceedings; and

2. the defendant was obliged to reimburse the deceased’s estate for any legal costs paid from the estate in the event that a different costs order was later made.

365. The regime acted as a form of direct exoneration of the defendant’s legal costs rather than a form of right of indemnity.

366. Further, it is clear that the orders providing for distributions of funds on account of the defendant’s legal costs did not give any presumptive right to indemnity. Thus, on 19 December 2022 the distribution, based on the parties’ agreement and permitting payment of $125,000 on account of the defendant’s legal costs, was made on the basis that the defendant (or the plaintiff) was obliged to reimburse the estate for any legal costs paid from the estate in the event that a different costs order is made.

365. By the time of the making of the order under UCPR r 7.10(2)(b), the proceedings had been on foot for a little over nine months. Thus, prior to that time:

1. the parties had engaged in requests for and provision of further and better particulars of the plaintiff’s statement of claim: CB Part A Tabs 2 and 3;

2. the defendant had already served a defence (on 18 July 2022): CB Part A Tab 4;

3. the statement of claim had been amended (on 19 January 2023), and the defendant had filed a defence to the amended statement of claim (on 17 February 2023): CB Part A Tabs 5 and 8;

4. the parties had engaged in requests for and provision of further and better particulars of the plaintiff’s amended statement of claim: CB Part A Tabs 6 and 7;

5. most of the plaintiff’s very substantial evidence in chief, including affidavits not merely from himself but also others, had been prepared and served: CB Part B Tabs 1-14;

6. most of the defendant’s responsive evidence in chief had been prepared and served: CB Part B Tabs 17-23; and

7. the defendant had already received and rejected the first offer.

368. The defendant’s approach to the defence was not neutral.

369. The defendant did not admit several aspects of the plaintiff’s claim which were entirely uncontentious, such as the facts that: the deceased had entered into leases of various lots (statement of claim [36]); the plaintiff had academic qualifications from the University of Newcastle (statement of claim [38], [39]); and the plaintiff had been offered a postdoctoral fellowship at Florida State University (statement of claim [40]). Why the defendant did not admit that the plaintiff had academic qualifications from the University of Newcastle and had been offered a postdoctoral fellowship at Florida State University is unclear.

370. Further, the defences filed by the defendant on 18 July 2022 and 17 February 2023 were verified and relevantly denied, rather than did not admit, significant allegations that I have referred to above. Thus, it was not the case that the defendant had insufficient information on his own account, after having made reasonable enquiries, to know whether or not the relevant allegations of fact were true or not. Rather, he made positive denials believing that the allegations were untrue.

371. The above context suggests to me that a purpose of the appointment was at least to ensure that any judgment or order in the proceedings would bind the deceased estate.

372. The permissive order made on 19 December 2022 that an amount of $125,000 be paid from the estate towards the defendant’s costs was made prior to any order for his representation of the estate under UCPR r 7.10(2)(b), and expressly included a term that he shall reimburse the estate for any legal costs paid from the estate in the event that a different costs order is made.

373. Further, the costs order on 2 March 2023 permitting an amount of $220,000 to be paid from the deceased’s estate towards the defendant’s costs of these proceedings, made on the same occasion as the actual order under UCPR r 7.10(2)(b), was unlike costs orders ordinarily attending a representative order. It expressly provided that the sum was, in the first instance, to be paid out of the defendant’s share of the estate, with liberty to either party to apply to the Court for a different costs order at the conclusion of the proceedings.

374. The defendant’s participation in the proceedings was such that, from the time of his defence on 18 July 2022, he had denied (rather than did not admit) material aspects of the plaintiff’s claim. Prior to the UCPR r 7.10(2)(b) appointment, significant forensic decisions had been made regarding the evidence to be adduced and the rejection of the first offer. I do not regard the r 7.10(2)(b) order as being a form of judicial recognition that the defendant was acting akin to an “executor”, as distinct from representing his own interests in the proceedings, so as to exclude the personal interest exception.

375. Leaving aside the form in which property was to be received by the defendant (by means of a trust), the defendant was, as a matter of substance, the only person entitled to the property the subject of the plaintiff’s claim.

376. I have addressed the defendant’s defence of the construction and rectification claims in my comments regarding the partial otherwise order.

377. In addressing the issue of indemnity, I have had particular regard to Ms Fendekian’s submissions in respect of things that the defendant did not do. Technically speaking, it is true that the defendant did nothing to seek to alter his position under the last Will; he did not commence the proceedings, he did not file any cross-claim seeking to enhance his position under the estate, and he did not make any family provision claim.

378. However, the final aspect of Ms Fendekian’s submission, namely that the defendant did not “otherwise do anything to pursue his own interest”, is more debatable. The choices of meaning to which the Macquarie Dictionary, online ed ascribes the verb “pursue” include:

3.  to strive to gain; seek to attain or accomplish (an end, object, purpose, etc.).

4. to proceed in accordance with (a method, plan, etc.).

379. The fact that a positive claim is not brought forward, in terms of seeking actual relief, does not necessarily deprive litigious engagement from being characterised as “pursuit of one’s interest”. There are various means of defending claims. Claims can be admitted or partly admitted. A defendant can file a submitting appearance. In the context of estate litigation, there are many examples of a representative party putting information in a neutral way before a court and otherwise playing a form of submitting role, permitting other parties who have the beneficial or other real interest in the subject matter of the proceedings to contest the claim.

380. Whilst it is true that, to some degree, the defence of the proceedings may be considered to be to the benefit of the estate in that it is consistent with the construction of the deceased’s last Will (as found by the Court), it is also true that the defence of the proceedings is in respect of a subject matter in which, subject to due administration of the estate, only the defendant has an interest: e.g. Zupicic at [44]; see also Stojanovski (No 3) at [117].

381. Thus, to say that the defendant was doing nothing more than “defending the estate and upholding the Will” does not quite capture the substance of what occurred in this case. The defendant engaged in the proceedings in a manner that was not neutral or indifferent to the outcome of the claims, in particular the estoppel claim. He pursued his own interest at least in the sense of proceeding in accordance with defensive strategies to defeat the claims, in particular the estoppel claim.

382. In obtaining the representative order, the defendant did not at that stage seek any orders in relation to an indemnity from the estate prior to proceeding with his defence of the claim. Rather, the orders that were made, as I have outlined above, permitted access to funds but on express terms which left open the question of any ultimate indemnity from the estate.

383. As I have indicated above, the opportunity to seek advice regarding the defence of estate proceedings may be available to a r 7.10(2)(b) representative defendant in appropriate circumstances.

384. In any event, the defendant did not seek any advice or direction of the Court in relation to aspects of his representation. Nor, if the defendant had had any doubt as to his standing to seek advice regarding the defence of the proceedings or acceptance of the second offer of compromise, did he seek appointment as an administrator ad litem.

385. However, I need not dwell on that. The issue regarding whether the defendant was able to seek judicial advice was briefly raised by me on the costs hearing with Mr Birtles, who did not submit that it was open to the defendant to obtain advice (at least not without a grant): T 8.47-9.12. In those circumstances, despite what I have observed above, I will address the indemnity issue on the basis that the possibility the defendant was able, or might have been able, to seek advice of the Court regarding his defence of the proceedings or acceptance of the second offer is put aside and is not a factor counted against the defendant in now seeking an indemnity.

386. Even if the defendant were unable to seek advice about his defence of the proceedings or acceptance of the second offer, in my assessment he contested the proceedings “essentially” in his own interest prior to and after the UCPR r 7.10(2)(b) appointment, and during the hearing, in an active and adversarial manner consistent with the denials of the material aspects of the plaintiff’s estoppel claim. I hasten to add that this is in no way a criticism of the defendant’s legal representatives.

387. Overall, looking at the matter holistically and substantively, I have concluded that the defendant’s conduct of the proceedings was essentially adversarial and in his own interest, and that the overall justice of the matter leads me to conclude that in the exercise of my discretion under s 98 of the CPA, no indemnity as sought ought to be permitted.

388. I am led to that conclusion by several aspects of the matter, including the context surrounding the litigation and its procedural history, the forensic choices made prior to and after the r 7.10(2)(b) order, the fact that no other person had any beneficial interest in the disputed lots apart from the defendant and the robust conduct of the hearing.

389. In light of the acceptance by counsel of the effect of the burden of estate expenses, any indemnity out of the deceased’s estate would at best have relieved the defendant of one-third of his costs. I accept that a one-third indemnity is better than none at all: T 11.38-.47. However, the burden of any indemnity, if given, would have to be borne in part by the plaintiff, who was substantively successful in the proceedings and served offers which I have found contained a genuine element of compromise, and which it was not reasonable for the defendant to reject.

390. In all of the above circumstances, I do not consider it appropriate or just that the defendant should be indemnified out of the deceased’s estate for his costs.

391. In making that determination, I make clear that I am exercising the discretion under s 98 of the CPA to order the costs of the proceedings to be borne in such way as I think just, and that the effect of the exercise of the discretion is to displace (to the extent described in the costs order) the statutory order provisions of s 46C(2) of the PAA concerning how testamentary expenses are to be borne.

Set-off of costs

392. In the principal judgment I adverted to the prospect that, in the event that there were cost orders favouring either side, contrary setting off of costs was appropriate: see PJ [827], citing Wang v Yu (No 2) [2024] NSWSC 4at [187]-[189], in turn citing Riva NSW Pty Ltd v Key Nominees Pty Ltd [2023] NSWSC 711 at [221]-[224].

393. The parties each sought orders setting off costs and I consider such orders are appropriate.

Conclusion

394. In the above circumstances, the orders of the Court are as follows:

1. Order that the plaintiff pay the defendant’s costs of the construction and rectification claims on the ordinary basis up to 22 December 2022.

2. Order that the defendant pay the plaintiff’s costs of the proceedings otherwise on the ordinary basis up to 22 December 2022.

3. Order that the defendant pay the plaintiff’s costs of the proceedings on the indemnity basis from 23 December 2022.

4. Order that the costs in order 1 be set off against the costs in orders 2 and 3.

Further, but subject to giving counsel seven days to propose any mutually agreed wording, I propose to make the following orders consistent with my findings in relation to declining an indemnity for the defendant’s costs:

5. Order that there be no order concerning the defendant’s liability to pay costs, to the intent that no part of the deceased’s estate referable to the entitlements of the plaintiff bears the burden of the defendant’s costs liability.

6. Order that, to the extent that orders 1 to 5 have the effect that the defendant has already received any payment out of the deceased’s estate which would on the accounting of the ultimate administration of the estate require adjustment to ensure that the plaintiff’s entitlements do not bear any part of burden of the defendant’s costs liability, the defendant reimburse the deceased’s estate for any legal costs paid from the estate, consistent with order 5(d) of the orders of Hallen J dated 19 December 2022.

7. Grant liberty to apply to Meek J on two days’ notice in respect of any issues arising out of orders 4 to 6.

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Decision last updated: 16 April 2024