The Estate of Maureen Laila Huber of Cobra VIC, The Estate of Dolf Paul Huber (No.2) [2021] NSWSC 187

The Estate of Maureen Laila Huber of Cobra VIC, The Estate of Dolf Paul Huber (No.2) [2021] NSWSC 187

Costs of the four motions for review are payable by the Backhouse brothers to the executors on the ordinary basis (not indemnity), due to lack of universal unmeritorious conduct; executors otherwise entitled to full indemnity out of estate/trust for any cost shortfall; in earlier proceedings before Lindsay J, no order as to costs between executors and Backhouse brothers as executors were cooperative and did not unreasonably oppose; Backhouse brothers to bear their own costs in proceedings before the Registrar as only they drove the hostile contest and were unsuccessful; executors entitled to indemnity for costs of settlement discussions and other ancillary costs; beneficiaries not...

Parties
First Plaintiff / Executor: Denzil Bruce Govett; Second Plaintiff / Executor: David Corbo; First Respondent / Beneficiary (backhouse Brother): Matthew William Backhouse; Second Respondent / Beneficiary (backhouse Brother): Daniel Charles Backhouse; Third Respondent / Beneficiary (daniel Backhouse's Child): Teysha Deal; Fourth Respondent / Beneficiary (daniel Backhouse's Child): Coco Backhouse by her tutor, Tracey Backhouse; Fifth Respondent / Beneficiary (daniel Backhouse's Child): Billy Backhouse by her tutor, Tracey Backhouse
Jurisdiction
Australia
Judgment Date
17 June 2021
Procedural Posture
Equity Probate / Trusts (costs, Commission, Administration of Estates) / Post Judgment Determination of Ancillary and Costs Issues After Principal Judgment
Outcome
Specified gross sum and other orders on costs; partial final orders with further directions for remaining issues in the proceeding.
Legal Topics
Executors' Commission, Recovery of Legal Costs From Estate, Beneficiaries' Rights in Cost Disputes, Indemnity of Executors, Trustee's Right of Indemnity, Costs of Estate Litigation, Beneficiaries' Challenge to Administration, Orders for Costs: Ordinary Vs Indemnity Basis
Equity Probate Trusts Civil Procedure Costs Executors' Commission Recovery of Legal Costs From Estate Beneficiaries' Rights in Cost Disputes +5 more

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Parties

Denzil Bruce Govett

First Plaintiff / Executor

David Corbo

Second Plaintiff / Executor

Matthew William Backhouse

First Respondent / Beneficiary (backhouse Brother)

Daniel Charles Backhouse

Second Respondent / Beneficiary (backhouse Brother)

Teysha Deal

Third Respondent / Beneficiary (daniel Backhouse's Child)

Coco Backhouse by her tutor, Tracey Backhouse

Fourth Respondent / Beneficiary (daniel Backhouse's Child)

Billy Backhouse by her tutor, Tracey Backhouse

Fifth Respondent / Beneficiary (daniel Backhouse's Child)

Procedural Posture

Equity Probate / Trusts (costs, Commission, Administration of Estates) / Post Judgment Determination of Ancillary and Costs Issues After Principal Judgment

Legal Issues

  1. 1 Who should bear the costs of various contested applications and reviews in the administration of Maureen and Dolf Huber's estates?
  2. 2 Are the executors entitled to full indemnity for legal costs from the estates or testamentary trusts, including 'costs differential'?
  3. 3 Should the Backhouse brothers/beneficiaries be ordered to pay executors' costs and on what basis?

Ratio Decidendi

Costs of the four motions for review are payable by the Backhouse brothers to the executors on the ordinary basis (not indemnity), due to lack of universal unmeritorious conduct; executors otherwise entitled to full indemnity out of estate/trust for any cost shortfall; in earlier proceedings before Lindsay J, no order as to costs between executors and Backhouse brothers as executors were cooperative and did not unreasonably oppose; Backhouse brothers to bear their own costs in proceedings before the Registrar as only they drove the hostile contest and were unsuccessful; executors entitled to indemnity for costs of settlement discussions and other ancillary costs; beneficiaries not...

Court Disposition

Specified gross sum and other orders on costs; partial final orders with further directions for remaining issues in the proceeding.

Orders

  • Backhouse brothers to pay executors' costs of four review motions (ordinary basis).
  • Executors indemnified out of estates/testamentary trusts for any costs differential for those motions.