Ludwig v Jeffrey (No. 3) [2021] NSWSC 23

Ludwig v Jeffrey (No. 3) [2021] NSWSC 23

In the context of disproportionate legal costs in a small trust estate, a specified gross sum should be ordered instead of an assessed sum for certain periods under s 98(4)(c) Civil Procedure Act 2005, with immediate release of uncontested sums, and the issue of personal liability for indemnity under Trustee Act 1925, s 100A is reserved for further submissions.

Parties
First Plaintiff/respondent: Joanne Elizabeth Ludwig; Second Plaintiff/respondent: Robert Walter Ludwig; Defendant/applicant: Lynton Barrett Jeffrey
Jurisdiction
Australia
Judgment Date
27 January 2021
Procedural Posture
Equity Proceeding / Consequential Orders Following Earlier Judgments
Outcome
Orders made for partial payment out by independent solicitor; specified gross sum procedure ordered for remaining costs; issue of personal indemnity reserved for further consideration.
Legal Topics
Trustee Indemnity, Costs Assessment, Liability of Beneficiaries, Application of Trustee Act 1925 S 100 a, Civil Procedure Act 2005 S 98(4)(c) Gross Sum Costs Order
Equity Trusts and Trustees Civil Procedure Trustee Indemnity Costs Assessment Liability of Beneficiaries Application of Trustee Act 1925 S 100 a Civil Procedure Act 2005 S 98(4)(c) Gross Sum Costs Order

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Parties

Joanne Elizabeth Ludwig

First Plaintiff/respondent

Robert Walter Ludwig

Second Plaintiff/respondent

Lynton Barrett Jeffrey

Defendant/applicant

Procedural Posture

Equity Proceeding / Consequential Orders Following Earlier Judgments

Legal Issues

  1. 1 Whether further costs assessment is required or a gross sum order should be made for trustee’s indemnity
  2. 2 Whether costs of specific motion should be on indemnity basis
  3. 3 Whether Trustee Act 1925, s 100A modifies the personal liability of the plaintiffs to indemnify trustee

Ratio Decidendi

In the context of disproportionate legal costs in a small trust estate, a specified gross sum should be ordered instead of an assessed sum for certain periods under s 98(4)(c) Civil Procedure Act 2005, with immediate release of uncontested sums, and the issue of personal liability for indemnity under Trustee Act 1925, s 100A is reserved for further submissions.

Court Disposition

Orders made for partial payment out by independent solicitor; specified gross sum procedure ordered for remaining costs; issue of personal indemnity reserved for further consideration.

Orders

  • The sum of $29,558.78 to be paid out to the defendant by the independent solicitor.
  • Stay on payment of further amounts until court determination of a specified gross sum for costs under s 98(4)(c) Civil Procedure Act 2005.