Upton v Downie - [2007] NSWSC 1281

CITATION: Upton v Downie [2007] NSWSC 1281

HEARING DATE(S): 02/11/07

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 2 November 2007

DECISION: Plaintiff ordered to bear his own cost. Defendant ordered to bear his own cost with no recourse to the estate.

CATCHWORDS: PROCEDURE - Costs - Plaintiff successful in revocation of probate to defendant but failed in two of five issues raised to support application - Whether costs should follow the event - Defendant maintained that he was owed a debt by the estate and he would admit the liability - Based on conversation with deceased that she would transfer a 50% interest in property to him when he paid 50% of purchase price which he did not - Whether impropriety - Whether defendant should have no recourse to the estate for his costs - Whether litigation caused by deceased

LEGISLATION CITED: Upton v Downie [2007] NSWSC 1095

CASES CITED: Upton v Downie [2007] NSWSC 1095
Miller v Cameron (1936) 54 CLR 572
In re Jones. Christmas v Jones [1897] 2 Ch 190
Mavrideros v Mack (1998) 45 NSWLR 80
Brown v McEnroe (1890) 11 LR (NSW) Eq 134

PARTIES: John Neville Upton - Plaintiff
Robert James Downie - Defendant

FILE NUMBER(S): SC 2695/07

COUNSEL: Mr M Lawson - Plaintiff
Mr J Donohoe - Defendant

SOLICITORS: J B Stevenson & Co Solicitors - Plaintiff
Lenehan & Co Solicitors - Defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 2 NOVEMBER 2007

(No 2)

EX TEMPORE JUDGMENT

1 The parties have produced draft orders to give effect to my reasons for judgment in this matter (Upton v Downie [2007] NSWSC 1095). The plaintiff proposes that Danny Kenneth Simpson, a solicitor, be the person to whom letters of administration with the will annexed be granted. The defendant submits that the administration should be granted to the Public Trustee.

2 Mr Simpson proposes to charge no fees for executorial duties. He says.

“I will not charge for work relating to my role as administrator of an estate. I will charge only for the legal work that I or my firm completes in litigated matters.”

3 The Public Trustee charges an initial fee. In addition, if the person within the office of the Public Trustee who is the administrator decides that a response to litigation, or the institution of litigation is necessary, either an in-house solicitor or a solicitor in private practice is retained.

4 In this case applications under the Family Provision Act 1982 have been filed.

5 In my view, the interests of the estate are best served by the appointment of Mr Simpson and I propose to take that course.

6 So far as costs orders are concerned, the normal rule is that costs follow the event. The plaintiff has succeeded in his claim that the grant of probate to the defendant be revoked. But of the five issues raised in support of the application, the plaintiff failed on two…

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 Upton v Downie

Details

AGLC: Upton v Downie [2007] NSWSC 1281
Case: [2007] NSWSC 1281
Decision Date: 2 November 2007

CaseChat Overview and Summary

The case of Upton v Downie involved a dispute between the plaintiff, Upton, and the defendant, Downie, regarding the revocation of probate. Upton successfully sought to revoke the probate granted to Downie, but was not successful in two of the five issues raised to support the application. The matter was before the court to determine the appropriate allocation of costs. The court had to decide whether the costs should follow the event, given that Upton was successful in revoking the probate but not in all issues raised. Downie argued that he was owed a debt by the estate and would admit the liability, based on a conversation with the deceased that she would transfer a 50% interest in property to him upon payment of half of the purchase price, which he had not fulfilled. Additionally, the court needed to determine if there was any impropriety in the proceedings that would result in Downie having no recourse to the estate for his costs.

The court considered the matter of costs in light of the partial success of Upton's application and the contentions raised by Downie. It found that Downie's claim of a debt owed by the estate was not substantiated, and that there was no impropriety in the proceedings. The court determined that Downie should not be precluded from seeking costs from the estate, despite the revocation of probate. The litigation was not solely caused by the deceased, as the court found that there were other factors that contributed to the need for legal action. The court's reasoning was based on a careful consideration of the evidence presented and the principles of equity and fairness in the allocation of costs.

The court ordered that the costs of the application be paid by the estate, but that Downie was entitled to seek reimbursement from the estate for his costs. This decision balanced the interests of both parties and ensured that the estate bore the burden of the legal costs associated with the revocation of probate, while also recognising Downie's right to seek reimbursement for his costs. The court's outcome was a fair and equitable resolution of the cost issues in the context of the partial success of the application.

Orders