Spatt v Benson; Benson v Spatt [2019] NSWSC 1195

Spatt v Benson; Benson v Spatt [2019] NSWSC 1195

Where proceedings concerning removal of an executor and for judicial advice are resolved without a hearing on the merits, and both parties have acted reasonably, the executor is entitled to be indemnified out of the estate for his costs on the indemnity basis pursuant to general law, UCPR r 42.25, and s 59(4) of the Trustee Act 1925 (NSW), and no order as to costs should otherwise be made between the parties.

Jurisdiction
Australia
Judgment Date
10 September 2019
Procedural Posture
Civil (equity Probate/administration of Estates) / Final Determination on Costs After Settlement/discontinuance of Removal Proceedings (2017/245068) and Judicial Advice Proceedings (2017/356484); No Merits Hearing
Outcome
Executor (Mr Benson) entitled to costs on the indemnity basis to be paid out of the estate for both proceedings; no other order as to costs (each other party to bear their own costs); Administration Motions' costs to be paid out of the estate on the indemnity basis; leave granted to discontinue Removal Proceedings;...
Legal Topics
['costs in Estate Litigation' "executor's Indemnity From Estate" 'removal of Executor' 'judicial Advice to Executors' 'costs Discretion After Settlement']
['equity' 'succession' 'trusts and Estates' 'civil Procedure'] ['costs in Estate Litigation' "executor's Indemnity From Estate" 'removal of Executor' 'judicial Advice to Executors' 'costs Discretion After Settlement']

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Procedural Posture

Civil (equity Probate/administration of Estates) / Final Determination on Costs After Settlement/discontinuance of Removal Proceedings (2017/245068) and Judicial Advice Proceedings (2017/356484); No Merits Hearing

Legal Issues

  1. 1 ['Whether the executor (Mr Benson) is entitled to be indemnified for his costs out of the estate on the indemnity basis for removal and judicial advice proceedings resolved without hearing on the merits;' 'How costs should be allocated among parties when proceedings are discontinued or dismissed before trial in estate litigation;' 'Whether the conduct of the executor or beneficiaries warrants departure from the usual costs rule for trustees/executors;' 'Applicability of rules 42.19, 42.20, 42.25 of the Uniform Civil Procedure Rules 2005 (NSW) in the context of discontinued/dismissed proceedings and trustee/executor costs']

Ratio Decidendi

Where proceedings concerning removal of an executor and for judicial advice are resolved without a hearing on the merits, and both parties have acted reasonably, the executor is entitled to be indemnified out of the estate for his costs on the indemnity basis pursuant to general law, UCPR r 42.25, and s 59(4) of the Trustee Act 1925 (NSW), and no order as to costs should otherwise be made between the parties.

Court Disposition

Executor (Mr Benson) entitled to costs on the indemnity basis to be paid out of the estate for both proceedings; no other order as to costs (each other party to bear their own costs); Administration Motions' costs to be paid out of the estate on the indemnity basis; leave granted to discontinue Removal Proceedings;...

Orders

  • ["Mr Benson's costs of the Removal Proceedings and Judicial Advice Proceedings to be paid out of the estate on the indemnity basis;" 'Each other party to bear their own costs;' 'Costs of all parties for the Administration Motions to be paid out of the estate on the indemnity basis;' 'Leave granted to Joel Spatt to...