Drummond v Drummond [1999] NSWSC 923

Drummond v Drummond [1999] NSWSC 923

The plaintiffs' request that the Estate Shares be distributed to the beneficiaries of the Estate of Elaine Drummond was proper, and the defendant unjustifiably resisted it by advancing erroneous legal objections and failing to make inquiries required by his duties as administrator, executor, director and secretary. His defence of the summons was so thoroughly unjustified as to warrant indemnity costs, and his conduct also disentitled him to any indemnity from the estate. The cross-claim was dismissed or discontinued and was brought for the defendant's personal benefit, so costs of the cross-claim should follow the event and not be borne by the estate.

Jurisdiction
Australia
Judgment Date
10 September 1999
Procedural Posture
Equity Proceedings Concerning Deceased Estates, Company Share Transfers, a Cross Claim and Costs / Costs Judgment After Substantive Claims Were Resolved by Consent
Outcome
Defendant ordered to pay the plaintiffs' costs of the summons on an indemnity basis; defendant as cross-claimant ordered to pay the plaintiffs' costs as cross-defendants on the cross-claim; no order permitting recovery of those costs or the defendant's own costs out of either estate.
Legal Topics
["executor's Duty of Inquiry and Administration" "executor's Indemnity for Costs Out of an Estate" "directors' and Secretary's Duties Concerning Company Records and Share Registers" 'transfer and Transmission of Shares' 'indemnity Costs' 'cross Claim Costs']
['equity' 'wills and Estates' 'corporations' 'civil Procedure'] ["executor's Duty of Inquiry and Administration" "executor's Indemnity for Costs Out of an Estate" "directors' and Secretary's Duties Concerning Company Records and Share Registers" 'transfer and Transmission of Shares' 'indemnity Costs' 'cross Claim Costs']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Deceased Estates, Company Share Transfers, a Cross Claim and Costs / Costs Judgment After Substantive Claims Were Resolved by Consent

Legal Issues

  1. 1 ["Whether the defendant should pay the plaintiffs' costs of the summons and cross-claim" 'Whether the defendant could recover his own costs and any costs ordered against him out of the Estate of Elaine Drummond' "Whether the plaintiffs' costs of the summons should be awarded on an indemnity basis" 'Whether the defendant had unjustifiably resisted execution of transfers of shares held in the Estate of J M Drummond' 'Whether costs of the cross-claim should be borne by the defendant personally or by the estate']

Ratio Decidendi

The plaintiffs' request that the Estate Shares be distributed to the beneficiaries of the Estate of Elaine Drummond was proper, and the defendant unjustifiably resisted it by advancing erroneous legal objections and failing to make inquiries required by his duties as administrator, executor, director and secretary. His defence of the summons was so thoroughly unjustified as to warrant indemnity costs, and his conduct also disentitled him to any indemnity from the estate. The cross-claim was dismissed or discontinued and was brought for the defendant's personal benefit, so costs of the cross-claim should follow the event and not be borne by the estate.

Court Disposition

Defendant ordered to pay the plaintiffs' costs of the summons on an indemnity basis; defendant as cross-claimant ordered to pay the plaintiffs' costs as cross-defendants on the cross-claim; no order permitting recovery of those costs or the defendant's own costs out of either estate.

Orders

  • ["The defendant pay the plaintiffs' costs of the summons on an indemnity basis." 'The defendant as cross-claimant pay the costs of the plaintiffs as cross-defendants on the cross-claim.' 'No order permitting any costs payable by the defendant, or his own costs, to be recovered out of either estate.']