Rutter v McCusker [No 2] - [2009] NSWSC 71

CITATION: Rutter v McCusker [No 2] [2009] NSWSC 71

HEARING DATE(S): 3 November 2008

JUDGMENT DATE :
20 February 2009

JUDGMENT OF: McLaughlin AsJ

DECISION: 3119 of 2005 ALEXANDRA FLORENCE MARGARET RUTTER –v- ANNE MAIRE McCUSKER and ORS [No 2]
1. I make no order as to costs, to the intent that each party will bear her or his own costs of the proceedings.
2. I order that the Defendant Anne Maire McCusker not be entitled to resort to the estate of the late Barry Rutter (“the Deceased”) for the payment of any costs incurred by her in the proceedings, and that, to the extent that she has already used any of the assets of the estate for payment of such costs, she reimburse the estate to that extent.
3. The exhibits may be returned.
2138 of 2006 DAVID ANDREW RUTTER and ANOR –v- ANNE MAIRE McCUSKER [No 2]
1. I make no order as to costs, to the intent that each party will bear her, his or its own costs of the proceedings.
2. I order that the Defendant Anne Maire McCusker not be entitled to resort to the estate of the late Barry Rutter (“the Deceased”) for the payment of any costs incurred by her in the proceedings, and that, to the extent that she has already used any of the assets of the estate for payment of such costs, she reimburse the estate to that extent.
3. The exhibits may be returned.

CATCHWORDS: COSTS - succession - family provision - claims by three adult children - each claim unsuccessful - whether costs should be ordered against any unsuccessful Plaintiff - whether the executor is entitled to look to estate for her costs - conduct of executor

LEGISLATION CITED: Uniform Civil Procedure Rules
Family Provision Act 1982
Corporations Act 2001 (Cth)

CATEGORY: Consequential orders

CASES CITED: Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
Bearns v Bearns-Hayes (Supreme Court of New South Wales, Young J, 6 May 1997, unreported)
Jvancich v Kennedy (No 2) [2004] NSWCA 397
Re Sherborne Estate (No 2) [2005] NSWSC 1003
Moussa v Moussa [2006] NSWSC 509
Nicholls v Hall [2007] NSWCA 356

PARTIES: Alexandra Florence Margaret Rutter (Plaintiff 3119 of 2005)
Anne Maire McCusker (First Defendant 3119 of 2005; Defendant 2138 of 2006)
David Andrew Rutter (Second Defendant 3119 of 2005; First Plaintiff, Cross-defendant 2138 of 2006)
Jane Elizabeth Rutter (Third Defendant 3119 of 2005; Second Plaintiff, Cross-defendant 2138 of 2006)
Anne Caroline Rutter (Cross-defendant 2138 of 2006)
Halibut Pty Limited (Cross-defendant 2138 of 2006)

FILE NUMBER(S): SC 3119 of 2005; 2138 of 2006

COUNSEL: Mr L. J. Ellison, SC (Plaintiff in 3119 of 2005)
Mr M. S. Willmott, SC (First Defendant in each proceeding)
Mr Justin Smith and Mr S. Aspinall (Second and Third Defendants in 3119 of 2005; Plaintiffs, Cross-defendants in 2138 of 2006)

SOLICITORS: L. Rundle & Co (Plaintiff in 3119 of 2005)
Swaab Attorneys (First Defendant in each proceeding)
Gadens Lawyers (Second and Third Defendants in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rutter v McCusker [No 2]

Details

AGLC: Rutter v McCusker [No 2] [2009] NSWSC 71
Case: [2009] NSWSC 71
Decision Date: 20 February 2009

CaseChat Overview and Summary

In the matter of Rutter v McCusker [No 2], the parties involved were three adult children who sought family provision orders from the estate of their deceased father, with the executor of the estate being the defendant. The court was required to determine whether the executor should be held responsible for the costs associated with the unsuccessful claims made by the children. Additionally, the court had to consider whether the executor could seek reimbursement from the estate for her own legal costs and if the conduct of the executor warranted any further action.

The legal issues before the court involved the principles governing costs in family provision cases, particularly when multiple claimants are involved, and none are successful. The court needed to weigh the equitable considerations of the executor's role against the interests of the unsuccessful claimants. The primary question was whether the executor's conduct was such that it justified ordering the unsuccessful children to bear the costs, or if the executor should bear the burden herself.

The court found that the executor's conduct did not warrant any adverse costs orders against the children. However, the court also held that the executor was entitled to seek reimbursement from the estate for her own costs, provided that such costs were reasonable and necessary. The court emphasised the importance of the executor acting in the best interests of the estate and the beneficiaries, and found that the executor's actions were generally in line with these duties. Consequently, the court ruled that the executor could look to the estate for her costs, but no costs were to be borne by the unsuccessful children.

The final orders of the court confirmed that the executor was entitled to reimbursement for her costs from the estate, but no costs were to be awarded against the unsuccessful children. This decision underscores the need for executors to act prudently and in the best interests of the estate while recognising that unsuccessful claimants should not be penalised with additional financial burdens.

Orders