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Wood v Inglis (Costs)

Wood v Inglis (Costs)

Case [2009] NSWSC 900 1 September 2009

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CITATION: Wood v Inglis (Costs) [2009] NSWSC 900

HEARING DATE(S): 28 August 2009

JUDGMENT DATE :
1 September 2009

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

DECISION: Order that the second, third and fourth cross-defendants pay the cross-claimant’s costs of the proceedings on the issues determined separately

CATCHWORDS: PROCEDURE – Costs – departing from the general rule – Whether costs should be borne by the estate – probate and trust proceedings – whether proceedings were analogous to construction suit – Held: proceedings not analogous to construction suit – Whether proceedings fault of deceased – where confusion more attributable to activities of parties after death than conduct of deceased – Held: proceedings not fault of deceased – Whether agitation of issues ultimately not necessary to determine warrant any special costs order - Held: no costs can be regarded as attributable to maintenance of unsubstantiated and unjustified issue

CATEGORY: Consequential orders

CASES CITED: Adey v Fisher (1914) 14 SR (NSW) 407
Butcher v Lachlan Elder Realty [2002] NSWCA 237, (2002) 55 NSWLR 558
Chang v Tjiong [2009] NSWSC 122
Higstrim v Ray (1895) 16 NSWLR (Eq) 1
In Re Buckton; Buckton v Buckton [1907] 2 Ch 406
In re Groom [1897] 2 Ch 407
In re Hall-Dare [1916] 1 Ch 272
Milillo v Konnecke [2009] NSWCA 109
Murdocca v Murdocca (No 2) [2002] NSWSC 505
Parker v McKenna (1874) LR 10 Ch App 96
Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Re Stone; Read v Dubua (1936) 36 SR (NSW) 508
Shorten v Shorten [2002] NSWCA 73
Wood v Inglis [2008] NSWSC 1147
Wood v Inglis [2008] NSWSC 1427
Wood v Inglis [2009] NSWSC 601

PARTIES: First Cross Claim:
Helen Margaret Inglis (cross-claimant)
Inglis Research Trust P/L (first cross-defendant)
Kathryn Margaret Clark (second cross-defendant)
Michael William Inglis (third cross-defendant)
Pamela Ruth Wood (fourth cross-defendant)
Fiona Jane Narlini Inglis (fifth cross-defendant)
William Keith Inglis (sixth cross-defendant)

FILE NUMBER(S): SC 1595/08

COUNSEL: Mr J E Thomson (cross-claimant)
Mr B J Burke (second cross-defendant)
Mr M B Evans w Mr C A Lambert (third cross-defendant)
Ms J A Needham SC w Mr R M Higgins (fourth cross-defendant)

SOLICITORS: Michael C Smith (cross-claimant)
Courtenay & Co (second cross-defendant)
Molloy & Schrader (third cross-defendant)
DSC Law (fourth cross-defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday 1 September 2009

1595/08 Pamela Ruth Wood v Helen Margaret Inglis (Costs)

JUDGMENT

1 HIS HONOUR: On 30 June 2009, I gave judgment in respect of certain questions arising on Mrs Helen Inglis’ cross-claim, which had on 16 December 2008 been ordered to be determined separately and before other issues in the proceedings [Wood v Inglis [2009] NSWSC 601]. On 7 July 2009, I made orders to give effect to that judgment, as follows:

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 Wood v Inglis (Costs)

Details

AGLC: Wood v Inglis (Costs) [2009] NSWSC 900
Case: [2009] NSWSC 900
Decision Date: 1 September 2009

CaseChat Overview and Summary

The matter before the court involved proceedings between the parties concerning probate and trust matters. The central dispute was over the allocation of costs associated with the litigation. The case was heard in the Supreme Court of Queensland. The deceased, Inglis, left behind an estate, and the litigation pertained to the administration of that estate. The primary issue for the court was whether the costs incurred in the proceedings should be borne by the estate or by the parties involved in the litigation.

The court had to determine whether the proceedings were analogous to a construction suit, which would allow for costs to be awarded in a manner different from the general rule. The court considered the nature of the litigation, which involved complex trust and probate issues, and compared it to the typical issues in a construction suit. The court found that the proceedings were not analogous to a construction suit, as the issues were more closely related to trust and probate matters rather than construction disputes. Additionally, the court examined whether the proceedings were a result of the deceased's fault, given the confusion that arose more from the activities of the parties post-mortem rather than the conduct of the deceased. The court concluded that the proceedings were not due to the fault of the deceased.

The court further considered whether the agitation of issues that were ultimately not necessary to determine warranted any special costs order. The court found that no costs could be regarded as attributable to the maintenance of unsubstantiated and unjustified issues. The court held that the costs should be borne by the estate, as the proceedings were not analogous to a construction suit and were not due to the fault of the deceased. Additionally, the court found that the agitation of unsubstantiated issues did not warrant a special costs order.

The final orders of the court were that the costs of the proceedings were to be borne by the estate of the deceased, Inglis. The court did not award any special costs for the maintenance of unsubstantiated issues. The court's decision was based on the finding that the proceedings were not analogous to a construction suit, were not due to the fault of the deceased, and did not warrant any special costs for unsubstantiated issues.

Orders