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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Reeves v Reeves (No 2) [2024] NSWSC 386
Case
[2024] NSWSC 386
Decision Date
CaseChat Overview and Summary
The case of Reeves v Reeves (No 2) involved a dispute over the costs incurred following a contested hearing regarding the construction and rectification of a deceased's will, along with an estoppel claim. The plaintiff, Reeves, sought to challenge the will's validity and to enforce an estoppel claim, while the defendant, also Reeves, was appointed as the representative of the deceased's estate pursuant to UCPR r 7.10(2)(b) approximately nine months after the commencement of the proceedings. The court found in favour of the plaintiff on the estoppel claim, effectively granting the plaintiff property to which they would not otherwise have been entitled given the dismissal of the construction and rectification claims.
The legal issues the court had to address included the interaction between the costs orders and the statutory order for payment of testamentary expenses under the PAA, the exercise of discretion under s 93(3) of the Trustee Act 1925 (NSW) and s 98 of the CPA, and the principles governing offers of compromise under UCPR r 42.14. The court also examined the nature and scope of a representative's role in estate proceedings, the options available for representatives to protect themselves from costs liability, and the availability of indemnity and judicial advice for a representative appointed under UCPR r 7.10(2)(b).
The court's reasoning led to the conclusion that the plaintiff had proposed a partial 'otherwise' order, which was granted, ordering the plaintiff to pay the defendant's costs of the construction and rectification claims up to the time of the first offer. The court determined that the defendant had not acted reasonably in rejecting the offers of compromise, and thus, the plaintiff was entitled to a partial indemnity of costs. Additionally, the court discussed various aspects of the representative's role, including the sources of obligations and entitlements, the means of appraising the reasonableness of costs, and the availability of indemnity and judicial advice. The court also highlighted the need for legislative consideration regarding the scope of a r 7.10(2)(b) representative's entitlements to judicial advice.
The final orders included the partial indemnity of costs to the defendant, along with the successful estoppel claim which granted the plaintiff the property in question. The court's detailed analysis provided clarity on the complex interplay between succession law, costs, and the role of estate representatives in contested proceedings.