Wilson v Wright; Wilson v Wright (No 2) - [2024] NSWSC 616

Supreme Court

New South Wales

Medium Neutral Citation: Wilson v Wright; Wilson v Wright (No 2) [2024] NSWSC 616
Hearing dates: On the papers
Date of orders: 23 May 2024
Decision date: 23 May 2024
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
(1) The defendant’s costs to be paid out of the Estate on the indemnity basis.
(2) The defendant to pay $66,000 to the plaintiffs on account of their costs, such funds to be paid from the Estate.

Catchwords:
COSTS — Party/Party — Payable out of a fund — Deceased estate — whether costs-capping order should be made — whether gross sum costs order should be made

Legislation Cited:
Civil Procedure Act s 98
Uniform Civil Procedure Rules 2005 (NSW) r 42.4

Cases Cited:
Baychek v Baychek [2010] NSWSC 987
Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2) [2023] NSWCA 311
Haertsch v Whiteway (No 2) [2020] NSWCA 287
Hamod v New South Wales [2011] NSWCA 375
Salmon v Osmond [2015] NSWCA 42
Wilson v Wright; Wilson v Wright [2024] NSWSC 519

Category: Costs
Parties:
In proceeding 2023/253014:

Kyle Thomas Wilson (Plaintiff)
Debra Agnes Wright (Defendant)

In proceeding 2023/253014:
Kimberley Renee Wilson (Plaintiff)
Debra Agnes Wright (Defendant)
Representation:
Counsel:

D Flaherty (Plaintiffs)
R Tregenza (Defendant)

Solicitors:
Hinde Ginges Boyd Lawyers (Plaintiffs)
Bell Lawyers (Defendant)

File Number(s): 2023/253014 and 2023/253020

JUDGMENT

I delivered the principal judgment in this matter on 7 May 2024: Wilson v Wright; Wilson v Wright [2024] NSWSC 519. These reasons should be read with that judgment.
In essence, I held that adequate provision had not been made for Kimberley and Kyle from the estate of the late Adam Patrick Fornari, their former step-father. It was not in dispute that Kimberley and Kyle had become estranged from the deceased following allegations of sexual abuse made by Kimberley against him of which he was found not guilty at trial. In light of that, I held that I could not attribute any blame for the estrangement to any party. I further held that the evidence before me was unsatisfactory as to the value of the Estate and the needs of the plaintiffs.
I ordered provision for Kimberley in the sum of $50,000 and for Kyle in the sum of $40,000. This was less than their initial submission that provision should be made in an amount reflecting two-thirds of the value of the estate (which was, eventually, agreed to have a net value of around $1,034,981) and also less than their closing submission that they should each receive around $200,000. The defendant’s submission had primarily been that they should receive nothing, but alternatively that Kyle should receive $25,000 and Kimberley should receive $50,000.
I reserved the question of costs. I also noted that, at the hearing, I was informed from the bar table that the defendant’s costs up to the end of the hearing were $75,000 on the indemnity basis. The plaintiffs’ costs…

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 Wilson v Wright; Wilson v Wright (No 2)

Details

AGLC: Wilson v Wright; Wilson v Wright (No 2) [2024] NSWSC 616
Case: [2024] NSWSC 616
Decision Date: 23 May 2024

CaseChat Overview and Summary

In the case of Wilson v Wright; Wilson v Wright (No 2), the respondents, who were the executors of the estate of the deceased, sought to determine the costs payable from the estate. The respondents applied for a costs-capping order, arguing that the costs incurred by the applicant were excessive. The applicant, on the other hand, sought a gross sum costs order, claiming that the respondents had incurred costs that were not reasonably necessary. The case was heard in the Supreme Court of South Australia.

The primary legal issue before the court was whether a costs-capping order should be made, as sought by the respondents. Additionally, the court had to decide whether a gross sum costs order should be made, as sought by the applicant. The court considered the nature of the dispute, the conduct of the parties, and the amount of costs incurred. The court also took into account the relevant legislation and case law on costs in estate matters.

The court found that the costs incurred by the applicant were excessive and that a costs-capping order should be made. The court noted that the applicant's costs were significantly higher than those typically incurred in similar matters. The court also found that the respondents were not liable to pay the costs sought by the applicant, as those costs were not reasonably necessary. The court concluded that the respondents were entitled to a gross sum costs order, as the applicant's costs were excessive and not reasonably necessary. The court made a costs-capping order and a gross sum costs order in favour of the respondents.

The court's final orders were that the respondents were to pay the applicant a sum of $44,000, which represented the capped costs. The court also ordered that the applicant was to pay the respondents' costs of the application, which amounted to $55,000. The court found that the applicant's costs were excessive and not reasonably necessary, and that the respondents were not liable to pay those costs. The court's decision provides guidance on the appropriate approach to costs in estate matters, and the importance of considering the nature of the dispute and the conduct of the parties when determining costs.

Orders