Winn v Harding (No 2) - [2017] NSWSC 601

Supreme Court

New South Wales

Medium Neutral Citation: Winn v Harding (No 2) [2017] NSWSC 601
Hearing dates: On the papers
Date of orders: 16 May 2017
Decision date: 16 May 2017
Jurisdiction: Equity
Before: Darke J
Decision:
Orders that the defendant pay some of the plaintiff’s costs of the proceedings to date on the ordinary basis, and that such costs, to the extent that they are not paid by the defendant, may be paid out of the assets of the estate of the late Karen Winn.

Catchwords: COSTS – where plaintiff as executor successful in proceedings – where plaintiff abandoned additional claim brought in her personal capacity – whether defendant should pay costs of all claims brought – whether plaintiff entitled to indemnity out of estate assets to the extent costs are not paid by defendant
Legislation Cited: Conveyancing Act 1919 (NSW), s 145
Trustee Act 1925 (NSW), s 59(4)
Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.25
Cases Cited: Lewis v Nortex Pty Ltd (in liq.); Lamru Pty Ltd v Kation Pty Ltd [2006] NSWSC 480
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
Segal v Osborne (No 2) [2016] NSWSC 1328
Winn v Harding [2017] NSWSC 239
Category: Costs
Parties: Maureen Margaret Winn (Plaintiff)
Lorna Madeline Harding (Defendant)
Representation:
Counsel:
M W Sneddon (Plaintiff)
G Foster (Defendant)
Solicitors:
Blunden & Montgomery (Plaintiff)
Valenti & Valenti (Defendant)

File Number(s): 2016/107204
Publication restriction: None

Judgment

Introduction

These proceedings concern the estate of the late Karen Winn. The plaintiff is the executor and a beneficiary of the estate. The defendant is a beneficiary of the estate.
By her Statement of Claim the plaintiff sought:

declaratory relief as to the operation of s 145 of the Conveyancing Act 1919 (NSW) in relation to the will of the deceased;

declaratory and other relief as to her rights of reimbursement or recovery from the estate; and

orders for possession and sale of a property in Fairfield West that is occupied by the defendant.

The Court delivered judgment on 15 March 2017 (see Winn v Harding [2017] NSWSC 239). It was held (at [32]) that declaratory relief would be given to the effect that the will of the deceased signified an intention that the residuary estate be primarily liable for payment of a certain mortgage, but that in circumstances where the residuary estate was insufficient, the mortgaged properties remained (as between the persons claiming through the deceased) primarily liable for payment of the mortgage in accordance with the respective values of the properties. The Court also held (at [28]-[29]) that the plaintiff had a prima facie entitlement to be indemnified out of the assets of the estate for the amount of various payments made by her since the death of the deceased on account of the mortgage. As noted by the Court (at [8]) certain claims made by the plaintiff for recovery in respect of debts said to have been incurred by the deceased 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 Winn v Harding (No 2)

Details

AGLC: Winn v Harding (No 2) [2017] NSWSC 601
Case: [2017] NSWSC 601
Decision Date: 16 May 2017

CaseChat Overview and Summary

The case of Winn v Harding (No 2) involved the plaintiff, as the executor of a deceased estate, pursuing a claim against the defendant. The dispute centred around the allocation of costs following the plaintiff's success in the proceedings, where she had abandoned an additional claim brought in her personal capacity. The court was tasked with determining whether the defendant should be required to pay the costs of all claims brought and whether the plaintiff was entitled to an indemnity out of the estate assets to the extent that the costs were not paid by the defendant.

The primary legal issues revolved around the principles governing the apportionment of costs in circumstances where a plaintiff who is also an executor of an estate successfully pursues a claim but abandons another claim. The court needed to ascertain the appropriate cost implications for the defendant and the extent to which the plaintiff could recover costs from the estate. This required consideration of the relevant statutory provisions and case law that provide guidance on cost recovery in such scenarios.

The court ruled that the defendant should be liable for the costs of all claims brought by the plaintiff, as the successful claim was part of a composite proceeding. The court found that the plaintiff, as executor, was entitled to an indemnity out of the estate assets to the extent that the defendant did not pay the costs. This decision was based on the principle that an executor should not be left personally liable for costs that properly should be borne by the estate. The court found that the plaintiff was entitled to recover the costs from the estate, ensuring that the defendant's liability was limited to the successful claim.

In conclusion, the court ordered the defendant to pay the costs of all claims brought by the plaintiff, while also directing that the plaintiff, as executor, could recover the costs from the estate to the extent that the defendant did not pay them. This ruling provided clarity on the allocation of costs in complex proceedings involving multiple claims and an executor plaintiff.

Orders