Russell v Quinton [2000] NSWSC 369

Russell v Quinton [2000] NSWSC 369

The appointment of a trustee for sale and the restriction in order 6 were appropriate because the defendant's conduct, including failure to disclose rental income and failure to pay the outstanding legacy balance, did not justify further delay. Indemnity costs were refused because, although the plaintiff obtained a result better than her Calderbank offer, the defendant's reliance on the Cohabitation Deed and cross-claim under s 31 of the Family Provision Act 1982 (NSW) raised matters not free of complexity, so rejection of the offer was not unreasonable and the usual party/party costs order should not be displaced.

Jurisdiction
Australia
Judgment Date
01 May 2000
Procedural Posture
Application for Appointment of Trustee Pursuant to S15 Family Provision Act 1982 (nsw) and Application for Indemnity Costs / Ex Tempore Judgment on Orders Following Judgment Delivered on 17 April 2000
Outcome
Trustee appointed; indemnity costs refused; defendant ordered to pay plaintiff's costs on a party/party basis.
Legal Topics
['appointment of Trustee for Sale' 'family Provision Orders' 'calderbank Offer' 'indemnity Costs' 'party/party Costs' 'cohabitation Deed' 'de Facto Relationship']
['equity' 'succession' 'family Provision' 'costs'] ['appointment of Trustee for Sale' 'family Provision Orders' 'calderbank Offer' 'indemnity Costs' 'party/party Costs' 'cohabitation Deed' 'de Facto Relationship']

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Procedural Posture

Application for Appointment of Trustee Pursuant to S15 Family Provision Act 1982 (nsw) and Application for Indemnity Costs / Ex Tempore Judgment on Orders Following Judgment Delivered on 17 April 2000

Legal Issues

  1. 1 ['Whether a trustee for sale should be appointed and restricted from taking steps to sell the property only until 1 June 2000 or until a later date.' "Whether the defendant should pay the plaintiff's costs on an indemnity basis rather than on a party/party basis."]

Ratio Decidendi

The appointment of a trustee for sale and the restriction in order 6 were appropriate because the defendant's conduct, including failure to disclose rental income and failure to pay the outstanding legacy balance, did not justify further delay. Indemnity costs were refused because, although the plaintiff obtained a result better than her Calderbank offer, the defendant's reliance on the Cohabitation Deed and cross-claim under s 31 of the Family Provision Act 1982 (NSW) raised matters not free of complexity, so rejection of the offer was not unreasonable and the usual party/party costs order should not be displaced.

Court Disposition

Trustee appointed; indemnity costs refused; defendant ordered to pay plaintiff's costs on a party/party basis.

Orders

  • ['Hugh Charles Thomas appointed as trustee for the sale of property pursuant to section 15 of the Family Provision Act 1982 (NSW).' 'Order 6 of the short minutes of order was made.' 'Order 3 was amended to read: "Order that the defendant pay the plaintiff\'s costs of the proceedings on a party/party basis".' 'In...