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Telfer v Telfer (No 2)

Telfer v Telfer (No 2)

Case [2013] NSWSC 823 21 June 2013

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No. 2) [2013] NSWSC 823
Hearing dates: 14 June 2013
Decision date: 21 June 2013
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Plaintiff not entitled to proceed to take probate. Plaintiff to personally pay the defendant's costs on indemnity basis and not to have his costs paid out of the estate. Dismiss the defendant's application for a specified gross sum cost order instead of assessed costs.

Catchwords: SUCCESSION - wills, probate and administration - plaintiff propounded a codicil knowing that the signature on it was not the testator's - whether the plaintiff should be passed over as executor of his brother's will - circumstances in which the Court may pass over a named executor discussed.
COSTS - plaintiff failed to establish that the codicil he propounded was properly executed - whether the plaintiff should pay the defendant's costs of the proceedings - part of the trial occupied by irrelevant matters raised by the defendant - whether costs on indemnity basis appropriate - additional costs incurred because the plaintiff's conduct - whether the plaintiff's and/or the defendant's costs may be paid out of the estate - principle that the executor's costs may be paid from the estate if his conduct was honest but mistaken discussed.
COSTS - whether a specified gross sum order under Civil Procedure Act 2005 s 98(4)(c) appropriate - principles of making such an order discussed - cost assessment necessary to unpick the costs on irrelevant issues raised by the defendant at the trial.
Legislation Cited: Civil Procedure Act 2005 s 98(4)
Probate and Administration Act 1898 s 74
Succession Act 2006 (NSW) s 6
Uniform Civil Procedure Rules 2005 r 42.1
Cases Cited: Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006
Beach Petroleum NL & Claremont Petroleum NL v Johnson (1995) 57 FCR 119
Bowler v Bowler, Supreme Court of NSW (7 June 1990) Young J
Burnside v Mulgrew [2007] NSWSC 550
Commonwealth Bank of Australia v Saleh [2007] NSWSC 990
Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354
Footes v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52
Hadid v Lenfest Communications Inc [2000] FCA 628
Harrison v Schipp [2002] NSWCA 213
Hobartville Stud Pty Limited v Union Insurance Co (1991) 25 NSWLR 358
Leichardt Municipal Council v Green [2004] NSWCA 341
Monty Financial Services Limited v Delmo (1996) 1 VR 65
National Trustees Executors and Agency Co v Barnes (1941) 64 CLR 268
Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer [2013] NSWSC 412
Ohn v Walton (1995) 36 NSWLR 77
Perpetual Trustees Company v Baker [1999] NSWCA 244
Re Hunter (1932) NZLR 911
The Uniting Church in Australia Property Trust (NSW) & Anor v John Kerry Millane [2002] NSWSC 1070
Upton v Downie [2007] NSWSC 1281
Category: Consequential orders
Parties: Plaintiff/Cross Defendant:- Neil…

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 Telfer v Telfer (No 2)

Details

AGLC: Telfer (as Executor for the Estate of the Late Telfer) v Telfer (No 2) [2013] NSWSC 823
Case: [2013] NSWSC 823
Decision Date: 21 June 2013

CaseChat Overview and Summary

In the case of Telfer v Telfer (No 2), the plaintiff, who was the proposed executor of his brother's will, propounded a codicil to the will that he knew did not bear the signature of the testator. The dispute arose over whether the plaintiff should be permitted to act as executor given this misconduct, and if the defendant, who was another sibling, should be compensated for the costs incurred due to the plaintiff's actions. The case was heard in the Supreme Court of New South Wales.

The central legal issue was whether the plaintiff, who knowingly presented an improperly executed codicil, should be disqualified from acting as the executor of his brother's will. Additionally, the court had to determine the appropriate costs order, considering the plaintiff's failure to substantiate the authenticity of the codicil and the costs associated with the trial, including those related to irrelevant matters raised by the defendant. The court also needed to decide whether a specified gross sum order under the Civil Procedure Act 2005 was appropriate and whether the costs could be paid from the estate.

The court found that the plaintiff's actions in presenting the invalid codicil were a significant breach of trust, leading to his disqualification as the executor. The court emphasised the importance of maintaining integrity in the administration of estates and the role of executors. Regarding costs, the court held that the plaintiff should bear the defendant's costs due to the failure to prove the codicil's validity. The court opted for a specified gross sum order, recognising the complexity of untangling the costs incurred from the trial's irrelevant issues. The court also considered the principle that executors' costs could be covered by the estate if their actions, though mistaken, were honest.

The court ordered that the defendant be paid costs from the plaintiff, with a specified gross sum reflecting the costs of the trial, including those on irrelevant matters. The court further ruled that the costs could be paid out of the estate, given the plaintiff's honest but mistaken conduct.

Orders