Colgate-Palmolive Company v Cussons Pty Limited

Submissions on behalf of Mrs Young 8 Mrs Young seeks an order that the Trustee pay her costs of and incidental to the notice of motion filed 28 June 2010 on an ordinary basis as agreed or taxed. Mrs Young submits that her application was not wholly unsuccessful. She was successful in obtaining an order that her costs, as petitioning creditor, be taxed and paid out of the bankrupt estate. While she was unsuccessful in her application to obtain an order for a Court enquiry pursuant to s 179, she was successful in demonstrating that there was sufficient evidence to justify concern about the Trustee's conduct. Although I considered that it was not appropriate to order an enquiry, I expressed the view that there is an issue to be explored concerning the Trustee's suitability to continue to be registered as a trustee under the Bankruptcy Act. I ordered that the Registrar of the Court forward my earlier reasons for judgment to the Inspector-General in Bankruptcy drawing to his attention my comments concerning the Trustee: earlier reasons at [142]. Mrs Young was also successful in her application concerning payment of the exempt assets. 9 In relation to the Trustee's conduct, Mrs Young points to the following findings I made, in support of an order that the Trustee pay her costs of the notice of motion: the Trustee had "not [acted] with the initiative and diligence that it was reasonable to expect": earlier reasons at [91]. the Trustee had been "lax about his record keeping and…less than helpful in responding to legitimate enquires": earlier reasons at [116]. his conduct "did not always meet the required standard": earlier reasons at [120]. he "was often unprofessional": earlier reasons at [139]. 10 Mrs Young submits that had the Trustee made the accounts and records of the estate readily available to her, litigation could have been avoided. She refers to a decision of this Court in Re Nader, T. Ex Parte; Official Trustee in Bankruptcy and Anor [1991] FCA 394 where the comments of Justice Cave in Re Bryant, Ex parte Gordon (1889) 6 Mor 262 at 266 were noted: Where the trustee has shown such carelessness and want of sense in a case in which, if he had exercised common sense, it would probably have saved litigation, I shall certainly make him pay the costs out of his own pocket. 11 Mrs Young concedes that there was a breakdown in the relationship between herself and the Trustee, but submits that this breakdown reflects more on the Trustee as I noted in my earlier reasons at [120] where I said: The history of the dispute between the parties over the books and records is yet another illustration of the antagonism between them and their inability to co-operate with each other. Ultimately, this reflects more on the Trustee than on Mrs Young. As the person appointed by the Court to administer the Macryannis estate under Part XI, the Trustee has duties and obligations which he is expected to discharge in a professional manner without allowing personal animosities to intrude. The tenor of the correspondence between the parties suggests that the Trustee did not always meet the required standard.

Submissions on behalf of Mrs Young 12 Mrs Young seeks an order that the Trustee pay her costs of and incidental to the Trustee's application on an indemnity basis or on an ordinary basis, as agreed or taxed. 13 In written submissions, Mrs Young concedes that the Trustee was successful in his interim application to the extent that he was found to be entitled to remuneration and reimbursement of his costs and expenses in relation to the "care, preservation and realisation" of the exempt assets. However, the Trustee was unsuccessful in having his remuneration fixed in a prescribed amount and in having that remuneration drawn from the exempt assets. 14 Mrs Young submits that, when considering costs, the Court should take into account offers made in Calderbank from her and from the beneficiaries under the will of Mr Macryannis to the Trustee in respect of his remuneration. Annexed to Mrs Young's written submissions are two letters representing these offers. The first is a letter dated 15 December 2009 addressed to the Trustee's solicitors, Parry Carroll, from Rockliffs on behalf of Mrs Young. The letter renews an offer made by Mr Findlay, the New South Wales Business Manager, Regulator Unit of the Insolvency and Trustee Service Australia (ITSA) on behalf of Mrs Young on 14 October 2009. Mrs Young offered to allow a deduction of $5,000 from the exempt assets on account of the Trustee's remuneration. The second letter is dated 11 May 2010 addressed to Parry Carroll from the beneficiaries' solicitors, Argyle Lawyers, in which the beneficiaries offered to pay the Trustee $25,000 in remuneration.

Submissions on behalf of the Trustee 15 The Trustee submits that these offers are of no relevance because they were incapable of implementation. He says this is so because Mrs Young refused to "regularise the Will position until the eleventh hour" and "The offers neglected to deal with the costs of the trustee's application to the Court for directions and did not deal with exempt assets.". 16 In response Mrs Young submits that the delay in obtaining the Supreme Court declaration was to a significant extent caused by the Trustee's conduct which led her to believe that the only issue to be resolved prior to payment of the assets to her was the approval of the Trustee's remuneration. If Mrs Young believed the matter could have been resolved by obtaining the declaration, which was eventually obtained, she submits she would have done so. 17 The Trustee seeks an order that Mrs Young pay his legal costs of the interim application on a party-party basis, despite the dismissal of his application, for the following reasons: 1. The Trustee's decision to seek directions in relation to his remuneration was correct. The correctness of this decision was not challenged, nor could it be. 2. The Court found the Trustee had a right to seek reimbursement of his costs and expenses under general law. 3. "[T]he need to bring the proceedings arose out of directions given by Mr Findlay, which included the option of payment of the balance of assets into Court within 14 days. The trustee was under compulsion to institute proceedings, one way or another". 4. The Trustee was requested by Mr Rockliff, in an email dated 28 September 2009, to make an application. 5. Mrs Young had refused to approve the Trustee's remuneration in an email dated 25 September 2009. 6. Mrs Young had rejected a suggestion by the Trustee on 21 January 2010 to have the issue of remuneration referred to arbitration or a Registrar for determination. If the Trustee's suggestion had been accepted, the Court may not have been required to deal with the application. 7. The Court was not prepared to make orders by consent or otherwise earlier in the proceeding distributing a proportion of the exempt assets to the beneficiaries, because a declaration had not been obtained in relation to the will. Mrs Young was not, at that stage, entitled to receive any assets from the estate. 8. "The material filed on behalf of [Mrs] Young was so excessive that it had to be defined by directions of the Court. The costs of the trustee were inflated by the conduct of the case conducted on behalf of [Mrs] Young". 18 The Trustee further submits that if the Court does not accept his submissions, as set out above, the Court should fix payment of a fixed percentage of his costs of the entire proceeding.

REASONING AND CONCLUSION 19 Although there are two separate applications to be considered here, that of the Trustee and that of Mrs Young, the two are closely connected: They relate to the same substratum of facts and were prompted by the same dispute between the parties. The Trustee sought to have the Court determine his remuneration because of Mrs Young's failure to approve his recommendations in that regard. Mrs Young refused to approve the Trustee's remuneration because she regarded the Trustee as not entitled by reason of his conduct. It was that conduct which, in Mrs Young's view, warranted an enquiry under s 179. It would be artificial to award costs in respect of the separate applications and, for that reason, I propose to treat them as one for the purpose of determining costs. 20 The Trustee submits that as Mrs Young was unsuccessful in her application for an enquiry under s 179, his costs of that application should be paid on an indemnity basis. While the usual position is that the successful party is awarded costs this is not a usual situation. In my earlier reasons I made clear that while I had "serious reservations about some aspects of the Trustee's discharge of his obligations as trustee" I did not think that an enquiry under s 179 would be of utility or that it would be "in the interests of the orderly administration of the deceased estate". As I said at [141]: There remains little to do to finalise the administration and, I understand, limited funds are available for any additional work in connection with the administration. In the circumstances it is in the interests of all concerned that it be finalised as soon as possible. 21 This conclusion did not reflect a rejection of all Mrs Young's complaints about the Trustee. I have referred above, at [11], to the Trustee's unprofessional behaviour. I might add that this extended beyond his dealings with Mrs Young, to his relations with Mr Macryannis' children and Mr Findlay. I do not doubt that had he behaved in a more professional manner the litigation might well have been avoided or considerably shortened. As such it is appropriate that the Trustee's conduct be taken into account in considering his application for costs. This is not to deny that Mrs Young also had some responsibility for the debacle surrounding the administration of Mr Macryannis' estate. 22 In so far as the Trustee's interim application in relation to his remuneration is concerned, my earlier reasons explain why, in my view, the issue could have been dealt with simply and with more expedition by following the statutory procedure outlined in my reasons. 23 Both the Trustee and Mrs Young in their submissions point to ways in which things might have been done differently and, if this had been so, the litigation might have been avoided. There is some merit in each case. It is not necessary for me to respond to these submissions point by point. It is clear from my earlier reasons that there was fault, delay and confusion on each side. I repeat, however, that in my view the greater fault lay with the Trustee despite him perhaps having greater success in the proceeding. 24 While it is rare for a successful litigant to be denied costs it is not unprecedented. In Cummings v Lewis [1992] FCA 334 Wilcox J considered the principles applicable to the exercise of discretion on costs, taking into account the relevance of the pre-trial conduct of the successful party and the weight to be attributed to this factor. His Honour's conclusions were summarised by Drummond J in Re Skase; ex parte Donnelly (1992) 37 FCR 509 at 522. In each case the successful party was denied part of its costs. The fundamental principle is that, in relation to costs, the Court has an unfettered discretion to do what is just in all the circumstances. 25 In my view the just result in this proceeding is that the Court make no order as to costs, the intent being that the Trustee and Mrs Young should bear their own costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.