Citation: [2016] NSWSC 1096
Date of Decision: 15 August 2016
Before: White J
File Number(s): 2013/302819
[2]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[3]
Judgment
THE COURT: These reasons assume familiarity with the facts set out in the Court's judgment in this matter in Priestley v Priestley. [1] The names of the parties used in this judgment conform to the usage of their names in those reasons.
Priestley v Priestley [2017] NSWCA 212 | Case summary | Zoe
On 27 June 2017, the Court allowed the appeal in this matter and made orders including requiring the parties to provide to the Court Short Minutes of Order giving effect to the Court's reasons including on the question whether Beverley's costs, including the costs that she had to pay Duncan, should be paid out of Gordon's estate, an issue the Court observed "may depend upon the extent to which the estate has assets beyond Salt Glen and the Water Licence Share." [2]
On 14 July 2017, Duncan's solicitors communicated to the Court that they had not received a response from Beverley's solicitors to a draft form of orders which Duncan's solicitors had provided with a view to a joint submission in conformity with the Court's orders.
On 18 July 2017, the Court sent an email to the parties, noting the correspondence received from Duncan's solicitors and forwarding a copy of Short Minutes of Order it would be prepared to make in the proceedings unless, prior to 25 July 2017, it received submissions in writing from either party as to why it should not so act.
On 20 July 2017, the Court received from Beverley's counsel proposed Short Minutes of Order with short submissions in support. On receipt of those submissions, the Court directed Duncan to provide any submissions in response no later than 5pm on Friday 28 July 2017 and Beverley to provide any reply submissions by 5pm on Tuesday 1 August 2017.
On 28 July 2017, the Court received submissions in accordance with the Court's direction from Duncan's counsel. No reply submissions were received from Beverley by 1 August 2017, or at all.
The effect of Beverley and Duncan's submissions was that both accepted orders 1 - 3(a) - (c) as proposed by the Court.
Insofar as order 3(d) proposed that Beverley pay Duncan's costs of the trial, Beverley submitted that Duncan should be paid his costs out of Gordon's estate on the ordinary basis.
In his submissions, Duncan contended that Beverley had not made any submission contrary to the proposition that she should pay Duncan's costs of the proceedings at first instance and of the appeal.
That is, strictly speaking, correct. However, as we have said, Beverley submitted that Duncan should be paid his costs out of the estate on the ordinary basis. This was on the basis that Beverley defended the proceedings in her role as the executrix named in Gordon's will and, although ultimately unsuccessful in defending the will against Duncan's estoppel claim, was doing no more than upholding Gordon's testamentary wishes as expressed in the will. In such circumstances, Beverley submitted that the Court should analogically apply principles applicable in probate litigation that "where the testator has been the cause of the litigation the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate". [3]
We would not accept Beverley's submission.
In the ordinary course, the Court is to order that costs follow the event unless it appears to the Court that some other order should be made. [4] As Beverley submitted, exceptions to that rule have been recognised in probate proceedings. One exception applies where "someone opposes a suit for grant of probate and, the opposition being well-founded by reason of some act or omission of (or 'fault' attributable to) the testator, has an order for costs in their favour accordingly." [5] Where this probate exception applies, the party seeking, reasonably albeit unsuccessfully, to propound or challenge a will does not have to bear his or her own costs, nor those of the other party. [6] Rather, they are borne by the estate. [7] However, here, as in Douglas v James, there was no contested suit for probate, nor any challenge to the validity of Gordon's will, hence the probate exception does not apply in terms. Rather, as Beverley's submissions recognised, Duncan's proceedings were adversarial in nature. There is no reason, in our view, to make an order other than that referred to in UCPR r 42.1.
Further, the Court's orders of 27 June 2017 recognised that Beverley should pay Duncan's costs of both the trial and the appeal. The only question insofar as costs were concerned in respect of which submissions were sought, was whether those costs, including those Beverley had to pay Duncan, should be paid out of Gordon's estate. Beverley's submissions seeking to invoke the probate exception do not appear to have appreciated the limited question on which costs submissions were sought. For that reason, too, invocation of the probate exception is inappropriate.
Duncan does not oppose an order to the effect of that referred to in [13], nor that Beverley's costs be paid out of the estate on an indemnity basis. [8] That order should, accordingly, be made.
The other point of contention between the parties concerned Beverley's submission that the Court should allow at least two months for her, Christopher and Claire to move from Salt Glen. Duncan submitted that, assuming the Court made final orders on or by 4 August 2017 and registration of the transfer of Salt Glen occurred following receipt of transfer and title documents on or by 18 August 2017, the order for possession would not be effective until after that date giving Beverley the benefit of nearly two months to make her arrangements. On that assumption, Duncan proposed orders that he have possession of Salt Glen forthwith upon registration of the transfer of that property and that he have leave to issue a writ of possession 14 days after registration of that transfer.
In the events which have happened, these orders will not be made until 23 August 2017. Putting in place thereafter the arrangements to which Duncan's submissions refer concerning registration of the transfer to Salt Glen and, if necessary, obtaining a writ of possession, would take one would assume, a minimum of several weeks. By the time those arrangements are put in place, it is apparent that Beverley would have had, as Duncan submitted, the benefit of nearly two months, possibly more, to make her arrangements. In those circumstances, in our view, the Court should accede to the orders Duncan proposed in this respect.
Accordingly, we make the following orders:
1. Appeal allowed.
2. Judgment and orders made in the Equity Division on 15 August 2016 and 25 August 2016 be set aside.
3. In lieu thereof:
1. Declare that the defendant holds the right, title and interest of the late Gordon Priestley (deceased) in the whole of the land comprised in Lots 10 and 30 in DP751545, Lot 6 in DP751574 and Lot 10 in DP751574 (Salt Glen) and in water access licence no. WAL34421 (water licence) on trust for the plaintiff absolutely;
2. Order that the defendant transfer to the plaintiff the whole of the land comprising Salt Glen, by delivering to the plaintiff's solicitor an executed Transfer in registrable form and the Certificates of Title, within 7 days of the making of this order;
3. Order that the defendant transfer to the plaintiff the deceased's share in the water licence, by delivering to the plaintiff's solicitors the documents necessary to effect such a transfer on the water access licence register, within 7 days of the entry of this order; and
4. Order that the defendant pay the plaintiff's costs of the proceedings.
1. Order that the appellant have possession of Salt Glen forthwith upon registration of the Transfer referred to in order 3(b) hereof.
2. Grant leave to the appellant to issue a writ of possession for Salt Glen 14 days after registration of the said Transfer.
3. Order that the respondent pay the appellant's costs of the appeal.
4. Order that the respondent's costs of the first instance proceedings and the appeal, including the costs she has to pay the plaintiff/appellant, be paid from the Estate of the Late Gordon Wedlock Priestley on the indemnity basis.
5. Respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.
[4]
Endnotes
[2017] NSWCA 155.
Ibid (at [171]).
Perpetual Trustee Company Ltd v Baker [1999] NSWCA 244 (Baker) (at [13]) per Giles JA and Brownie AJA.
Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1.
Douglas v James (No 2) [2015] NSWSC 969 (at [20]) per McDougall J; aff James v Douglas [2016] NSWCA 178.
Baker (at [14]).
Nicolina Clocchiatti v John Paul Pierobon & Ors; Estate of John Pierobon [2014] NSWSC 488 (at [79]) per White J (as his Honour then was).
cf UCPR, r 42.5.
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Decision last updated: 23 August 2017