Brock v Foord [2003] NSWSC 1125

Brock v Foord [2003] NSWSC 1125

After the Plaintiffs' solicitors' letter of 29 November 2001, the Defendant's continued refusal to join in the application for probate, persistence in allegations of impropriety against the First Plaintiff, and insistence on the appointment of an administrator were unjustified. The administrator's reports exonerated the First Plaintiff and the Defendant's conduct unnecessarily delayed the administration of a simple estate and the proceedings. That conduct warranted indemnity costs after 29 November 2001 and required the Defendant, rather than the estate, to bear the administrator's remuneration and costs.

Jurisdiction
Australia
Judgment Date
02 December 2003
Procedural Posture
Probate Costs Proceedings / Opposing Notices of Motion as to Costs After Substantive Probate Proceedings Were Resolved by Consent Orders Appointing an Administrator
Outcome
Plaintiffs' costs application granted in part; Defendant's notice of motion dismissed.
Legal Topics
['indemnity Costs' 'caveat Against Grant of Probate' 'letters of Administration With Will Annexed' 'executor Refusal to Join in Probate Application' "administrator's Remuneration and Costs"]
['probate' 'costs' 'equity'] ['indemnity Costs' 'caveat Against Grant of Probate' 'letters of Administration With Will Annexed' 'executor Refusal to Join in Probate Application' "administrator's Remuneration and Costs"]

Case Brief

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Procedural Posture

Probate Costs Proceedings / Opposing Notices of Motion as to Costs After Substantive Probate Proceedings Were Resolved by Consent Orders Appointing an Administrator

Legal Issues

  1. 1 ['What costs order should be made in respect of the proceedings generally.' 'How the remuneration charged by Kevin Richard Shirlaw for his administration of the estate and the costs incurred by him in connection with the proceedings should be borne.' "Whether the Plaintiffs' costs after 29 November 2001 should be payable by the Defendant on an indemnity basis." "Whether the Defendant's notice of motion for costs should be dismissed."]

Ratio Decidendi

After the Plaintiffs' solicitors' letter of 29 November 2001, the Defendant's continued refusal to join in the application for probate, persistence in allegations of impropriety against the First Plaintiff, and insistence on the appointment of an administrator were unjustified. The administrator's reports exonerated the First Plaintiff and the Defendant's conduct unnecessarily delayed the administration of a simple estate and the proceedings. That conduct warranted indemnity costs after 29 November 2001 and required the Defendant, rather than the estate, to bear the administrator's remuneration and costs.

Court Disposition

Plaintiffs' costs application granted in part; Defendant's notice of motion dismissed.

Orders

  • ['The Defendant pay the costs of the Plaintiffs of the proceedings after 29 November 2001, such costs to be on the indemnity basis.' 'The Defendant pay the remuneration and the costs of Kevin Richard Shirlaw, including any legal costs as administrator of the estate of the late Joyce Isabel Holyhead.' 'The Defendant...