P Barnes (as executor of the estate of the late Lawrence Barnes) v D Barnes (No 4) [2023] NSWSC 746

P Barnes (as executor of the estate of the late Lawrence Barnes) v D Barnes (No 4) [2023] NSWSC 746

The Court refused a further 90 day stay because the property was estate property, administration had been long delayed by Mr Darren Barnes' repeated failures to give possession, and the additional 28 days was just in all the circumstances. An indemnity costs order could not be based on failure to complete after service of a notice to complete because that was not conduct within the litigation, but it was justified from 23 February 2023 because Mr Darren Barnes, while legally represented, failed to respond to a reasonable Calderbank offer and continued to resist possession despite having no real prospect of success and no means to complete the purchase. A lump sum order payable from any...

Jurisdiction
Australia
Judgment Date
03 July 2023
Procedural Posture
Costs and Succession Proceeding Concerning Possession of Estate Property / Final Orders After Judgment in P Barnes (as Executor of the Estate of the Late Lawrence Barnes) V D Barnes (no 3) [2023] NSWSC 491, Including Costs, Writ of Possession and Stay
Outcome
Judgment for the plaintiff; writ of possession issued; cross-claim dismissed; costs ordered against the defendant/cross-claimant, including indemnity costs from 23 February 2023 and a gross sum costs order payable from any estate distribution to the defendant.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'lump Sum Costs Order' 'writ of Possession' 'estate Administration' 'co Executors']
['costs' 'succession' 'civil Procedure'] ['indemnity Costs' 'calderbank Offer' 'lump Sum Costs Order' 'writ of Possession' 'estate Administration' 'co Executors']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs and Succession Proceeding Concerning Possession of Estate Property / Final Orders After Judgment in P Barnes (as Executor of the Estate of the Late Lawrence Barnes) V D Barnes (no 3) [2023] NSWSC 491, Including Costs, Writ of Possession and Stay

Legal Issues

  1. 1 ['Whether an indemnity costs order should be made' 'Whether a lump sum costs order should be made' 'Whether the costs should be made payable out of the estate' 'Whether Mr Darren Barnes should be given a further 90 days to vacate the property']

Ratio Decidendi

The Court refused a further 90 day stay because the property was estate property, administration had been long delayed by Mr Darren Barnes' repeated failures to give possession, and the additional 28 days was just in all the circumstances. An indemnity costs order could not be based on failure to complete after service of a notice to complete because that was not conduct within the litigation, but it was justified from 23 February 2023 because Mr Darren Barnes, while legally represented, failed to respond to a reasonable Calderbank offer and continued to resist possession despite having no real prospect of success and no means to complete the purchase. A lump sum order payable from any...

Court Disposition

Judgment for the plaintiff; writ of possession issued; cross-claim dismissed; costs ordered against the defendant/cross-claimant, including indemnity costs from 23 February 2023 and a gross sum costs order payable from any estate distribution to the defendant.

Orders

  • ['Judgment for the plaintiff.' 'That a writ of possession be issued for the land comprised in Lot xxx in DPxxxxx being the land situated at and known as xxxxxx Road, Nimbin in the State of New South Wales.' 'That enforcement of the writ of possession be stayed for 28 days from the date of these orders, to permit the...