Rutter v McCusker [No 2] [2009] NSWSC 71

Rutter v McCusker [No 2] [2009] NSWSC 71

Due to Anne's unreasonable and self-interested conduct as executor, and absence of merit in the plaintiffs' claims, the court exercised discretion to make no order for costs in either proceeding, requiring all parties to bear their own costs and Anne not to be indemnified from the estate for her costs.

Parties
Plaintiff (3119 of 2005): Alexandra Florence Margaret Rutter; First Defendant (3119 of 2005); Defendant (2138 of 2006): Anne Maire McCusker; Second Defendant (3119 of 2005); First Plaintiff, Cross Defendant (2138 of 2006): David Andrew Rutter; Third Defendant (3119 of 2005); Second Plaintiff, Cross Defendant (2138 of 2006): Jane Elizabeth Rutter; Cross Defendant (2138 of 2006): Anne Caroline Rutter; Cross Defendant (2138 of 2006): Halibut Pty Limited
Jurisdiction
Australia
Judgment Date
20 February 2009
Procedural Posture
Family Provision, Succession, Costs Applications / Post Judgment Order as to Costs
Outcome
No order as to costs. All parties to bear their own costs. Anne Maire McCusker not entitled to recoup costs from estate; must reimburse any estate assets used for her costs.
Legal Topics
Family Provision, Costs, Executor Conduct, Estate Administration
Succession Law Civil Procedure Family Provision Costs Executor Conduct Estate Administration

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Parties

Alexandra Florence Margaret Rutter

Plaintiff (3119 of 2005)

Anne Maire McCusker

First Defendant (3119 of 2005); Defendant (2138 of 2006)

David Andrew Rutter

Second Defendant (3119 of 2005); First Plaintiff, Cross Defendant (2138 of 2006)

Jane Elizabeth Rutter

Third Defendant (3119 of 2005); Second Plaintiff, Cross Defendant (2138 of 2006)

Anne Caroline Rutter

Cross Defendant (2138 of 2006)

Halibut Pty Limited

Cross Defendant (2138 of 2006)

Procedural Posture

Family Provision, Succession, Costs Applications / Post Judgment Order as to Costs

Legal Issues

  1. 1 Whether any costs order should be made against unsuccessful plaintiffs in family provision claims
  2. 2 Whether the executor is entitled to look to the estate for her costs
  3. 3 Effect of executor's conduct on costs entitlement

Ratio Decidendi

Due to Anne's unreasonable and self-interested conduct as executor, and absence of merit in the plaintiffs' claims, the court exercised discretion to make no order for costs in either proceeding, requiring all parties to bear their own costs and Anne not to be indemnified from the estate for her costs.

Court Disposition

No order as to costs. All parties to bear their own costs. Anne Maire McCusker not entitled to recoup costs from estate; must reimburse any estate assets used for her costs.

Orders

  • No order as to costs. Each party to bear own costs.
  • Anne Maire McCusker not entitled to resort to the estate for payment of any costs incurred by her; she must reimburse the estate if already used any assets for such costs.