Serves Pty Ltd atf the Rosemont Trust v Roche (Deceased); Roche (Deceased) v Serves Pty Ltd atf the Rosemont Trust (Costs)

Serves Pty Ltd atf the Rosemont Trust and Roche (Deceased) were co-owners of a property which was the subject of a Summons to appoint trustees for sale. Roche (Deceased) was represented by the executor of her estate, who initially opposed the sale but subsequently did not object to the sale on the basis that she would cooperate. Orders for sale were made, reserving the executor's costs of the Summons. Roche (Deceased) then sought to recover a portion of her costs from the proceeds of the sale, primarily being the costs of an affidavit sworn by her, as well as costs in relation to an unsuccessful cross-claim against Serves Pty Ltd atf the Rosemont Trust for equitable contribution of expenses met by the estate. Serves Pty Ltd atf the Rosemont Trust opposed these applications for costs.

The court was required to determine whether Roche (Deceased) was entitled to any costs from the proceeds of the sale, and if so, in what amount. The court was also required to determine whether the executor was entitled to indemnity costs from the estate in relation to the cross-claim, and if so, in what amount. The court considered the nature and extent of the executor's opposition to the Summons and cross-claim, and whether she had acted for the benefit of the estate in bringing and maintaining the cross-claim.

The court held that no order for payment out of the proceeds of sale should be made in favour of Roche (Deceased) as her opposition to the Summons was not reasonable, and the affidavit could not have contributed in any meaningful way to the resolution of the Summons. The court also held that the executor was not entitled to indemnity costs from the estate in relation to the cross-claim, as she had not acted for the benefit of the estate in bringing and maintaining the cross-claim. The executor's costs of the cross-claim were to be borne by her alone.

The court made orders that Roche (Deceased) was not entitled to any costs from the proceeds of the sale, and that the executor was not entitled to any indemnity costs from the estate in relation to the cross-claim. The executor was to bear her own costs of the cross-claim.