Affidavit under Part IV of the Trustee Act by Tenterfield Shire Council (No 3) [2021] NSWSC 1556

Affidavit under Part IV of the Trustee Act by Tenterfield Shire Council (No 3) [2021] NSWSC 1556

The Costs Order was intended to impose personal liability on Mr Walsh for Mr Templeton's costs and the words describing Mr Walsh as acting in his capacity as administrator were not intended to limit liability to estate assets. Because the underlying proceedings were adversarial and Mr Walsh pursued a claim from which he stood to gain, he bore the ordinary risk of an adverse costs order. The entered order created ambiguity with unintended legal consequences, and it was appropriate to amend it under UCPR r 36.17 and the Court's inherent jurisdiction so that it reflected the Court's intended order.

Jurisdiction
Australia
Judgment Date
06 December 2021
Procedural Posture
Notice of Motion to Amend Costs Order Under R 36.17 of the Uniform Civil Procedure Rules 2005 (nsw) / On the Papers; Consequential Orders
Outcome
The Costs Order was amended; the Amendment Motion was otherwise dismissed with no order as to its costs.
Legal Topics
['slip Rule' 'amendment of Entered Orders' 'costs Against Legal Personal Representative' 'personal Liability for Costs' 'administration of Deceased Estate' 'finality of Litigation']
['civil Procedure' 'costs' 'trusts and Estates' 'bankruptcy'] ['slip Rule' 'amendment of Entered Orders' 'costs Against Legal Personal Representative' 'personal Liability for Costs' 'administration of Deceased Estate' 'finality of Litigation']

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Procedural Posture

Notice of Motion to Amend Costs Order Under R 36.17 of the Uniform Civil Procedure Rules 2005 (nsw) / On the Papers; Consequential Orders

Legal Issues

  1. 1 ["Whether the Costs Order should be varied or corrected under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) or the Court's inherent jurisdiction." 'Whether the words "in his capacity as administrator of the estate of Jeanette Irene Walsh" limited Mr Walsh\'s liability for costs to the assets of that estate.' "Whether Mr Walsh was personally liable for Mr Templeton's costs arising from adversarial litigation over entitlement to the Fund."]

Ratio Decidendi

The Costs Order was intended to impose personal liability on Mr Walsh for Mr Templeton's costs and the words describing Mr Walsh as acting in his capacity as administrator were not intended to limit liability to estate assets. Because the underlying proceedings were adversarial and Mr Walsh pursued a claim from which he stood to gain, he bore the ordinary risk of an adverse costs order. The entered order created ambiguity with unintended legal consequences, and it was appropriate to amend it under UCPR r 36.17 and the Court's inherent jurisdiction so that it reflected the Court's intended order.

Court Disposition

The Costs Order was amended; the Amendment Motion was otherwise dismissed with no order as to its costs.

Orders

  • ['Jack Edward Walsh pay the costs of Russell Eric Templeman in relation to the motion of 18 September 2017.' 'No order as to the costs of the Amendment Motion.' 'The Amendment Motion is otherwise dismissed.']