Wilcox v Wilcox (No 2) - [2019] NSWSC 470

Supreme Court

New South Wales

Medium Neutral Citation: Wilcox v Wilcox (No 2) [2019] NSWSC 470
Hearing dates: On the papers
Decision date: 30 April 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Order that the applicant pay the costs of the first and second respondents in relation to the application on an indemnity basis.
2. Order that access to the executor’s affidavit filed in support of the application and inspection of the original Will is conditional on those costs being paid or otherwise secured in advance by the applicant.

Catchwords: COSTS –––– Party/Party –– Bases of quantification — Indemnity basis –– making of fraud allegations –– where second respondent unnecessarily joined as party to the proceedings –– where applicant’s conduct has led to unnecessary costs being incurred
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-59, 60, 98
New South Wales Professional Conduct and Practice Rules 2013
Uniform Civil Procedure Rules 2005 (NSW), rr 18.3(1)(b), 49.19, 59.11
Cases Cited: Antov v Bokan [2019] NSWCA 40
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Jamal v Secretary Department of Health (1988) 14 NSWLR 252
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
KP Cable Investments Pty Limited v Meltglow Pty Limited (1995) 56 FCR 189; [1995] FCA 76
Lenning v Alexander Proudfood Company World Headquarters [1991] NSWCA 173
NRMA Ltd v Morgan (No 3) [1999] NSWSC 768
Re Majory, ex parte The Debtor v F A Dumont Ltd [1955] Ch 600; [1955] 2 All ER 65
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Sahab Holdings Pty Ltd v Registrar-General (No 3) [2010] NSWSC 403
Waters v P C Henderson (Australia) Pty Ltd [1994] NSWCA 338
Wilcox v Wilcox [2019] NSWSC 306
Category: Costs
Parties: Robert William Wilcox (Applicant)
The late Patricia Anne Wilcox (executrix and trustee) (First Respondent)
Paul Brian Duffy (Second Respondent)
Representation: Counsel:
E Danis (As “Mackenzie friend” for Applicant)
B Nixon (Solicitor) (First Respondent)
P Duffy (in person, Second Respondent)

File Number(s): 2011/00327494
Publication restriction: Nil

Judgment

HER HONOUR: On 25 March 2019, I determined an application brought by Mr Robert Wilcox pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in relation to a decision made by a Registrar of this Court on 3 July 2018 to refuse an application by Mr Wilcox for access to a probate file relating to the Will dated 21 August 2002 of Mr Wilcox’ grandfather, the late Ian Francis Sanderson (the deceased) (the Will) (Wilcox v Wilcox [2019] NSWSC 306). In particular, Mr Wilcox had applied to inspect the original version of the Will that was admitted to probate back in 2011 (the original Will).
I concluded that no error had been shown in the decision by the Registrar not to permit Mr Wilcox access to the original Will in circumstances where no reason was put forward by Mr Wilcox (a non-party to the litigation) for…

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 Wilcox v Wilcox (No 2)

Details

AGLC: Wilcox v Wilcox (No 2) [2019] NSWSC 470
Case: [2019] NSWSC 470
Decision Date: 30 April 2019

CaseChat Overview and Summary

In the case of Wilcox v Wilcox (No 2), the parties involved were the applicant and the second respondent, both of whom were in a relationship with the deceased. The dispute centred around the costs associated with the proceedings, specifically the conduct of the applicant, who was also the executor of the deceased's estate. The applicant had made allegations of fraud against the second respondent, which were deemed unnecessary and led to additional costs being incurred. The matter was heard in the Supreme Court of Queensland, where the second respondent applied for an order regarding the quantification of costs.

The legal issues that the court had to decide included whether the applicant's conduct in making the fraud allegations against the second respondent was reasonable and necessary. Additionally, the court had to determine whether the second respondent's inclusion in the proceedings was justified and whether the applicant's conduct had led to unnecessary costs being incurred. The court was also required to decide the basis for quantifying the costs, considering the indemnity basis and whether it was appropriate in light of the applicant's conduct.

The court found that the applicant's conduct in making the fraud allegations against the second respondent was unreasonable and unnecessary. The court held that the second respondent should not have been joined as a party to the proceedings, as the allegations against them were unfounded. As a result, the court determined that the applicant was liable for the costs incurred due to the second respondent's unnecessary involvement. The court also found that the indemnity basis was appropriate for quantifying the costs, as the applicant's conduct had led to unnecessary expenses.

The final orders of the court included the applicant being held liable for the costs associated with the second respondent's unnecessary involvement in the proceedings. The court further ordered that the costs be quantified on an indemnity basis, reflecting the unnecessary expenses incurred due to the applicant's conduct. This decision highlights the importance of ensuring that allegations made in legal proceedings are reasonable and necessary to avoid incurring additional costs and potential liability for those costs.

Orders