Turner v O’Bryan-Turner (No 2) [2021] NSWSC 101

Turner v O’Bryan-Turner (No 2) [2021] NSWSC 101

Costs should follow the event for each proceeding. Wendy's estate is to pay 20% of the Nick interests' costs referable to successful claims against her in the 2017 Proceeding, discounted due to concessions/abandonment; Nick (as John’s tutor) is to pay David and Karl's costs of the 2017 Proceeding; cross-claim costs as between Wendy and the Nick interests are to be borne individually. No indemnity costs are warranted as refusal to accept the Calderbank offer was not unreasonable. In the 2019 Proceeding, Nick interests are to pay the plaintiff's (Angelena as tutor for John) costs.

Parties
First Plaintiff (2017 Proceeding): Owen John Turner by his tutor Nicholas John Turner; Second Plaintiff (2017 Proceeding), Second Defendant (2019 Proceeding): Allawah Pastoral Pty Ltd; Third Plaintiff (2017 Proceeding), First Defendant (2019 Proceeding): Nicholas John Turner; First Defendant (2017), Plaintiff as Tutor for John (2019): Angelena May O'Bryan in her capacity as the Executrix of the Estate of Wendy Joan O'Bryan-Turner; Second Defendant (2017 Proceeding): David John Turner; Third Defendant (2017 Proceeding): Karl John Turner; Fourth Defendant (2017 Proceeding): Registrar-General, Land and Property Information; Plaintiff (2019 Proceeding): Owen John Turner by his tutor Angelena May O'Bryan
Jurisdiction
Australia
Judgment Date
18 February 2021
Procedural Posture
Civil (equity) / Post Trial, Costs and Consequential Orders Following Principal Judgment
Outcome
Costs orders and consequential procedural directions made as set out in the written orders below.
Legal Topics
Costs, Fiduciary Duties, Powers of Attorney, Implied Undertakings, Case Management, Indemnity Costs, Sanderson Orders
Equity Civil Procedure Costs Fiduciary Duties Powers of Attorney Implied Undertakings Case Management Indemnity Costs +1 more

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Parties

Owen John Turner by his tutor Nicholas John Turner

First Plaintiff (2017 Proceeding)

Allawah Pastoral Pty Ltd

Second Plaintiff (2017 Proceeding), Second Defendant (2019 Proceeding)

Nicholas John Turner

Third Plaintiff (2017 Proceeding), First Defendant (2019 Proceeding)

Angelena May O'Bryan in her capacity as the Executrix of the Estate of Wendy Joan O'Bryan-Turner

First Defendant (2017), Plaintiff as Tutor for John (2019)

David John Turner

Second Defendant (2017 Proceeding)

Karl John Turner

Third Defendant (2017 Proceeding)

Registrar-General, Land and Property Information

Fourth Defendant (2017 Proceeding)

Owen John Turner by his tutor Angelena May O'Bryan

Plaintiff (2019 Proceeding)

Procedural Posture

Civil (equity) / Post Trial, Costs and Consequential Orders Following Principal Judgment

Legal Issues

  1. 1 How costs should be allocated among multiple parties in related equity proceedings involving fiduciary breach and proprietary remedies
  2. 2 Whether grounds exist to depart from the general rule that costs follow the event, including the application of Sanderson orders or special (indemnity) costs orders after Calderbank offers
  3. 3 Whether leave is required for disclosure of documents subject to implied undertakings (Harman undertaking)

Ratio Decidendi

Costs should follow the event for each proceeding. Wendy's estate is to pay 20% of the Nick interests' costs referable to successful claims against her in the 2017 Proceeding, discounted due to concessions/abandonment; Nick (as John’s tutor) is to pay David and Karl's costs of the 2017 Proceeding; cross-claim costs as between Wendy and the Nick interests are to be borne individually. No indemnity costs are warranted as refusal to accept the Calderbank offer was not unreasonable. In the 2019 Proceeding, Nick interests are to pay the plaintiff's (Angelena as tutor for John) costs.

Court Disposition

Costs orders and consequential procedural directions made as set out in the written orders below.

Orders

  • Wendy's estate to pay 20% of the Nick interests' costs of the 2017 Proceeding referable to claims against Wendy (except cross-claim costs).
  • Nick, as John's tutor, to pay David and Karl's costs of the 2017 Proceeding; Allawah to pay costs of its abandoned s 37A Conveyancing Act claim.