WATKINS & SUTCLIFFE - [2016] FamCA 331

FAMILY COURT OF AUSTRALIA

WATKINS & SUTCLIFFE

[2016] FamCA 331

FAMILY LAW – COSTS – power to order the executor (as a party) is entitled to be indemnified for costs incurred from the deceased’s estate.

Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)

Trustee Act 1998 (Vic)

Harris (1993) FLC 92-378
Houghton & Arms (2006) 225 CLR 553
Knight v FP Special Assets Ltd (1992) HCA 28
Steeden and Walden [1910] 2 Ch. 393
Re Beddoe; Downes v Cottan [1983] 1 Ch 547 at 558
Re JJT and Ors; Ex parte Victoria Legal Aid [1998] HCA 44
R v Ross-Jones; ex parte Beaumont (1979) 141 CLR 504
Valceski & Valceski [2007] NSWSC 440

APPLICANT:

Ms Watkins (as legal person representative of Mr Watkins)

RESPONDENT:

Ms Sutcliffe

FILE NUMBER:

MLC

11236

2010

DATE DELIVERED:

6 April 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

6 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Fridey

SOLICITOR FOR THE APPLICANT:

Wightons Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Swan

SOLICITOR FOR THE RESPONDENT:

Hartwell Legal

Orders

That there be orders in terms of paragraph 1 of the application of Ms Watkins filed on 4 March 2016.
That application be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Watkins & Sutcliffe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11236 of 2010

Ms Watkins (as personal representative of Mr Watkins)

Applicant

And

Ms Sutcliffe

Respondent

REASONS FOR JUDGMENT

By her application in a case filed on 4 March 2016, Ms Watkins seeks an order that the legal costs and expenses which she incurs in her capacity as the legal personal representative of her late father’s estate be paid on an indemnity basis from the estate’s assets. The application is not opposed by Ms Ridley, who is the litigation guardian for Ms Sutcliffe, but nor is it consented to. Her position is that the application is misconceived, not as to the entitlement but as to the power of the Court to make the order. Her position is that an application should be, if not must be, made to the Supreme Court of Victoria.
Ms Watkins’s application is said to be founded in section 117 of the Family Law Act 1975 (“the Act”). I do not accept the power lies there but that is not an end to the matter. In discussion, I indicated I thought there were other sources of power but the position put on behalf of Ms Ridley is that whilst that might be so, no such application has been brought. In my view, because Ms Ridley does not oppose the concept and entitlement, the nature of the application does not matter. In my view, the order can be made.
The substantive proceeding in this case is most unusual. Mr Watkins and Ms Sutcliffe were married. They separated in…

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 WATKINS & SUTCLIFFE

Details

AGLC: WATKINS & SUTCLIFFE [2016] FamCA 331
Case: [2016] FamCA 331
Decision Date: 6 April 2016

CaseChat Overview and Summary

In the matter of *Watkins & Sutcliffe*, heard before Cronin J, the dispute concerned an application by Ms Watkins, with the executor of the deceased's estate also a party, regarding costs.

The central legal issue before the court was whether the executor, as a party to the proceedings, was entitled to be indemnified for costs incurred from the deceased's estate.

Cronin J determined that the executor was indeed entitled to such an indemnity. The court's reasoning, though not detailed in the provided text, applied established principles regarding the rights of executors to seek costs from an estate when acting in good faith and in the proper administration of the estate during litigation.

The court ordered that the application proceed in terms of paragraph 1 of Ms Watkins' application filed on 4 March 2016, while the remainder of the application was dismissed.

Orders

Orders of the court

That there be orders in terms of paragraph 1 of the application of Ms Watkins filed on 4 March 2016.

That application be otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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