Steven Binetter as the representative of the Estate of the Late Ida Wolff v Ronald Binetter [2020] NSWSC 552

Steven Binetter as the representative of the Estate of the Late Ida Wolff v Ronald Binetter [2020] NSWSC 552

Security for costs was ordered because the plaintiff was an overseas resident executor suing on behalf of a deceased estate, the deeming provision in s 97(1) of the Probate and Administration Act 1898 did not make him ordinarily resident in Australia for the purposes of UCPR r 42.21(1)(a), and there were significant difficulties and expense in enforcing any costs order against him or the estate assets. The order was not made merely because of possible impecuniosity, and the amount was fixed on a broad brush basis with an allowance for delay affecting past costs.

Jurisdiction
Australia
Judgment Date
13 May 2020
Procedural Posture
Application for Security for Costs in Proceedings to Recover an Alleged Loan / Notice of Motion Filed 8 April 2020
Outcome
Application for security for costs granted in part; notice of motion otherwise dismissed.
Legal Topics
['security for Costs' 'overseas Executor' 'deceased Estate' 'ordinary Residence Outside Australia' 'enforcement of Costs Orders' 'quantum of Security']
['civil Procedure' 'probate and Administration' 'costs'] ['security for Costs' 'overseas Executor' 'deceased Estate' 'ordinary Residence Outside Australia' 'enforcement of Costs Orders' 'quantum of Security']

Case Brief

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Procedural Posture

Application for Security for Costs in Proceedings to Recover an Alleged Loan / Notice of Motion Filed 8 April 2020

Legal Issues

  1. 1 ["Whether the Court's power to order security for costs was enlivened because the plaintiff was ordinarily resident outside Australia under r 42.21(1)(a) of the Uniform Civil Procedure Rules 2005." 'Whether s 97(1) of the Probate and Administration Act 1898 deemed the overseas executor to be resident in New South Wales for the purposes of r 42.21(1)(a).' "Whether r 42.21(1)(e) was satisfied on the basis that the plaintiff was suing for the benefit of others and there was reason to believe he would be unable to pay the defendant's costs." 'Whether the difficulty of enforcing any costs order against an overseas executor of a deceased estate justified security for costs.' 'Whether delay in bringing the application affected the grant or amount of security, including security for past costs.' 'What amount of security should be ordered.']

Ratio Decidendi

Security for costs was ordered because the plaintiff was an overseas resident executor suing on behalf of a deceased estate, the deeming provision in s 97(1) of the Probate and Administration Act 1898 did not make him ordinarily resident in Australia for the purposes of UCPR r 42.21(1)(a), and there were significant difficulties and expense in enforcing any costs order against him or the estate assets. The order was not made merely because of possible impecuniosity, and the amount was fixed on a broad brush basis with an allowance for delay affecting past costs.

Court Disposition

Application for security for costs granted in part; notice of motion otherwise dismissed.

Orders

  • ['The plaintiff is to give the defendant security for its costs of the proceedings in the amount of $145,000 within 35 days.' 'The parties confer in relation to the form of security.' "Grant the parties liberty to apply on 2 days notice in relation to the form of security or such other orders as are necessary to...