Hawkins v Barkley-Brown & Anor [No 2] [2010] NSWSC 395

Hawkins v Barkley-Brown & Anor [No 2] [2010] NSWSC 395

Because Vicki Barkley-Brown chose to pursue an unsuccessful review of the registrar's commission decision, costs should follow the event and she must pay John Hawkins' costs on the party/party basis, although her conduct did not justify indemnity costs against her. John Hawkins should otherwise be indemnified from the estate for unrecovered costs of the review. Interest should run from 15 April 2009 because he was entitled to the commission from the registrar's orders. He may deduct agreed or assessed costs from Vicki Barkley-Brown's estate entitlement. Vicki Barkley-Brown's late claim for commission for the first accounts period was not permitted because she had expressly disclaimed such...

Jurisdiction
Australia
Judgment Date
04 May 2010
Procedural Posture
Consequential Orders on Executor's Commission, Costs and Review of Registrar's Decision / After Principal Judgment Allowing Review But Reaching the Same Conclusion as the Registrar
Outcome
Registrar Haggett's orders of 15 April 2009 were confirmed; Vicki Barkley-Brown's notice of motion filed 13 May 2009 was dismissed; her late commission claim for the first accounts period was not allowed to proceed; costs and interest orders were made in favour of John Hawkins.
Legal Topics
["executor's Commission" 'passing of Accounts' 'costs' 'indemnity Costs' 'interest on Judgment Sums' "set Off Against Beneficiary's Entitlement" 'late Application for Commission']
['equity' 'succession' 'civil Procedure'] ["executor's Commission" 'passing of Accounts' 'costs' 'indemnity Costs' 'interest on Judgment Sums' "set Off Against Beneficiary's Entitlement" 'late Application for Commission']

Case Brief

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Procedural Posture

Consequential Orders on Executor's Commission, Costs and Review of Registrar's Decision / After Principal Judgment Allowing Review But Reaching the Same Conclusion as the Registrar

Legal Issues

  1. 1 ['Whether John Hawkins should receive a costs order for the failed review motion and whether costs should be on a party/party or indemnity basis.' 'Whether Vicki Barkley-Brown should receive her costs out of the estate.' 'Whether interest should accrue on the commission and costs allowed by the registrar from 15 April 2009.' "Whether John Hawkins may deduct assessed or agreed costs from Vicki Barkley-Brown's interest in the estate." "Whether Vicki Barkley-Brown could now claim executor's commission for the period covered by the first accounts."]

Ratio Decidendi

Because Vicki Barkley-Brown chose to pursue an unsuccessful review of the registrar's commission decision, costs should follow the event and she must pay John Hawkins' costs on the party/party basis, although her conduct did not justify indemnity costs against her. John Hawkins should otherwise be indemnified from the estate for unrecovered costs of the review. Interest should run from 15 April 2009 because he was entitled to the commission from the registrar's orders. He may deduct agreed or assessed costs from Vicki Barkley-Brown's estate entitlement. Vicki Barkley-Brown's late claim for commission for the first accounts period was not permitted because she had expressly disclaimed such...

Court Disposition

Registrar Haggett's orders of 15 April 2009 were confirmed; Vicki Barkley-Brown's notice of motion filed 13 May 2009 was dismissed; her late commission claim for the first accounts period was not allowed to proceed; costs and interest orders were made in favour of John Hawkins.

Orders

  • ['Order that the orders made by registrar Haggett on 15 April 2009 be and are hereby confirmed.' 'The first accounts of John Hawkins and Vicki Barkley-Brown, the Executors of the Will of Rhoda Brenda Farrell covering the period 17th December 2005 to 1 August 2007 be passed.' 'The Executor John Hawkins be allowed...