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Saunders v Maestri

Saunders v Maestri

Case [2025] NSWSC 244 21 March 2025

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Saunders v Maestri [2025] NSWSC 244
Hearing dates: On the papers
Date of orders: 21 March 2025
Decision date: 21 March 2025
Jurisdiction: Equity - Probate List
Before: Slattery J
Decision:
The plaintiff’s costs shall be paid out of the estate on the indemnity basis. 60% of the first to fourth defendant’s costs shall be paid out of the estate on the indemnity basis. The fifth defendant’s costs shall be paid out of the estate on the indemnity basis.

Catchwords:
COSTS – Party/Party – Payable out of a fund – deceased estate – Uniform Civil Procedure Rule (UCPR) r 42.20 – deceased leaves five children, four of his first wife and one of his second wife – his will appoints the child of his second wife, the plaintiff, as executrix of his will – disagreement arises about construction of the will and whether Powers ofAttorney Act 2003 s 22 applies to certain transactions using a power of attorney during the deceased’s lifetime – plaintiff commences proceedings joining the children of the first marriage as defendants – proceedings resolve subject to the consent of the second wife – but the second wife is a person under a legal incapacity and needs to be joined before the settlement can be perfected – the proceedings are dismissed by consent, subject to an extent contest about costs – the first to fourth defendants contend that the plaintiff executor’s costs of commencing and maintaining the proceedings were not properly and reasonably incurred and she should bear them herself and pay the costs associated with the jointer and advising of the second wife - the plaintiff and the second wife dispute these contentions.

Legislation Cited:
Powers of Attorney Act 2003
Uniform Civil Procedure Rules 2005 r 7.6

Cases Cited:
Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194
Australia Wide Airlines Ltd t/as Regional Express v Aspirion Pty Ltd [2006] NSWCA 365
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff (No 2) [2009] NSWCA 12
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Elite Protective Personnel Pty Ltd v Salmon (No. 2) [2007] NSWCA 373
Fordyce v Fordham (2006) 67 NSWLR 497
Foukkare v Angreb Pty Ltd [2006] NSWCA 335
McNamara v San [2010] NSWSC 809
Metro Chatswood Pty Ltd v CRI Chatswood Pty Ltd [2007] NSWSC 1120
Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
New South Wales v Stanley [2007] NSWCA 330
Pentroth Pty Ltd v Kirschild Pty Ltd (2006) 96 SASR 129
Re the Estate of Hodges (1988) 14 NSWLR 698

Texts Cited:
G E Dal Pont, Powers of Attorney, 3rd Edition, LexisNexis, 2020 [9.39] to [9.42]

Category: Costs
Parties: Linda Anne Saunders (Plaintiff)
Colin Edwin Maestri (First Defendant)
Michael Warren Maestri (Second Defendant)
Bruce Kevin Maestri (Third Defendant)
Sandra Christine Remy (Fourth Defendant)
Beverley Anne Maestri (Fifth Defendant)
Representation:
Counsel:
E Glover (Plaintiff)
H Bennett SC (First-Fourth Defendants)

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 Saunders v Maestri

Details

AGLC: Saunders v Maestri [2025] NSWSC 244
Case: [2025] NSWSC 244
Decision Date: 21 March 2025

CaseChat Overview and Summary

In the case of Saunders v Maestri, the dispute arose from the estate of a deceased man who left behind five children from two marriages. The deceased’s will appointed the child from his second marriage, the plaintiff, as the executrix of his will. A disagreement ensued regarding the construction of the will and the applicability of a specific section of the Powers of Attorney Act 2003 to certain transactions carried out during the deceased’s lifetime using a power of attorney. The plaintiff initiated legal proceedings against the children from the first marriage, who were joined as defendants. However, the proceedings were resolved subject to the consent of the deceased’s second wife, who was a person under a legal incapacity and needed to be joined before the settlement could be perfected. Consequently, the proceedings were dismissed by consent, but a dispute over costs arose. The children from the first marriage argued that the costs incurred by the plaintiff executor in commencing and maintaining the proceedings were not properly and reasonably incurred, and she should bear these costs herself, along with the costs associated with joining and advising the second wife. The plaintiff and the second wife contested these claims.

The legal issues before the court involved whether the plaintiff executor was entitled to have the costs of the proceedings, including the costs associated with joining and advising the second wife, paid from the deceased’s estate. The primary focus was on whether the costs were properly and reasonably incurred under the Uniform Civil Procedure Rules and whether the executrix was justified in taking certain actions in the course of the litigation. The court had to determine the scope of the executrix’s duties and the extent to which she was entitled to reimbursement for her costs from the estate.

The court considered the provisions of the Uniform Civil Procedure Rules, specifically rule 42.20, which governs the payment of costs out of a deceased estate. The court examined whether the plaintiff executor’s actions in commencing and maintaining the proceedings were within the scope of her duties as executrix and whether she had acted reasonably. The court also considered the nature of the dispute and the necessity of joining and advising the second wife. Ultimately, the court found that the plaintiff executor had acted within the scope of her duties and that the costs were properly and reasonably incurred. The court ruled that the plaintiff executor was entitled to have the costs paid from the deceased’s estate, rejecting the contentions of the first to fourth defendants.

The court’s decision was that the plaintiff executor was entitled to reimbursement for the costs of commencing and maintaining the proceedings, including those associated with joining and advising the second wife, from the deceased’s estate. This decision affirmed the executrix’s right to be compensated for her actions in managing the estate and resolving the legal dispute.

Orders