Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2)

The case of *Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2)* concerned an appeal before the New South Wales Court of Appeal. The dispute involved the Trustee for the Salvation Army (NSW) Property Trust, as appellant, and Becker, the first respondent, in relation to costs orders made in earlier proceedings concerning the estate of a deceased person.

The primary legal issue before the Court of Appeal was the appropriate basis for ordering the costs of the appeal. Specifically, the court had to determine whether the costs should be awarded on a party/party basis or an indemnity basis, and whether any shortfall in reimbursement should be met from the deceased's estate.

The Court of Appeal reasoned that the conduct of the appellants warranted an order for indemnity costs from a certain point in time. This decision was based on the court's assessment of the parties' conduct during the litigation, particularly after 9 November 2006, which indicated a departure from reasonable conduct justifying a higher costs order. The court also considered the principles governing the administration of deceased estates and the equitable distribution of assets, leading to the conclusion that the estate should bear the remaining costs if the appellants' liability was not fully discharged.

Consequently, the Court of Appeal ordered that the appellants pay the first respondent's costs of the appeal on a party/party basis up to and including 9 November 2006, and on an indemnity basis thereafter. Furthermore, to the extent that the appellants' costs were not wholly reimbursed by this order, the first respondent's costs on an indemnity basis were to be paid out of the estate of the deceased.