Mendonca v Tonna; Mendonca v Hathaway; The application of Hathaway and Hosking [2024] NSWSC 1024

Mendonca v Tonna; Mendonca v Hathaway; The application of Hathaway and Hosking [2024] NSWSC 1024

Dr Mendonca unreasonably maintained her claims and gradually capitulated, leading to judgment that trustee remuneration and expenses should be paid from sale proceeds in part solely from her share; costs incurred after failed mediation are to be borne 50% from proceeds (unapportioned), 50% from Dr Mendonca's share. Trustees and Tonnas' costs are payable from Dr Mendonca's portion, on indemnity basis after 28 July 2023. Trustees are fully indemnified; Tonnas' costs rank after Trustees' costs.

Parties
Plaintiff/first Respondent/applicant: Renuka Mendonca; First Defendant/second Respondent: Mark Tonna; Second Defendant/third Respondent: Lorraine Tonna; First Applicant/trustee for the Sale of the Property/first Respondent: Stephen Hathaway; Second Applicant/trustee for the Sale of the Property/first Respondent: Philip Hosking
Jurisdiction
Australia
Judgment Date
15 August 2024
Procedural Posture
Equity; Costs / Post Hearing—determination of Costs, Following Substantive Resolution
Outcome
Trustees to be indemnified; Dr Mendonca to pay costs from her share of the net sale proceeds; costs orders made in favour of Trustees and Tonnas; relevant claims and motions dismissed.
Legal Topics
Trustee Remuneration, Costs Orders, Beneficial Interests in Trust Property, Set Off, Indemnity Costs, Trustee's Right of Indemnity
Equity Trusts Costs Trustee Remuneration Costs Orders Beneficial Interests in Trust Property Set Off Indemnity Costs +1 more

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Parties

Renuka Mendonca

Plaintiff/first Respondent/applicant

Mark Tonna

First Defendant/second Respondent

Lorraine Tonna

Second Defendant/third Respondent

Stephen Hathaway

First Applicant/trustee for the Sale of the Property/first Respondent

Philip Hosking

Second Applicant/trustee for the Sale of the Property/first Respondent

Procedural Posture

Equity; Costs / Post Hearing—determination of Costs, Following Substantive Resolution

Legal Issues

  1. 1 How trustee remuneration and expenses are to be apportioned among beneficiaries
  2. 2 Whether Dr Mendonca's conduct in litigation warrants special costs orders
  3. 3 Determination of legal costs for Trustees and Tonnas

Ratio Decidendi

Dr Mendonca unreasonably maintained her claims and gradually capitulated, leading to judgment that trustee remuneration and expenses should be paid from sale proceeds in part solely from her share; costs incurred after failed mediation are to be borne 50% from proceeds (unapportioned), 50% from Dr Mendonca's share. Trustees and Tonnas' costs are payable from Dr Mendonca's portion, on indemnity basis after 28 July 2023. Trustees are fully indemnified; Tonnas' costs rank after Trustees' costs.

Court Disposition

Trustees to be indemnified; Dr Mendonca to pay costs from her share of the net sale proceeds; costs orders made in favour of Trustees and Tonnas; relevant claims and motions dismissed.

Orders

  • Trustees' remuneration and expenses approved at $192,095.50 (excluding GST); paid from sale proceeds according to apportionment: up to 28 July 2023 from proceeds (unapportioned), thereafter half from proceeds, half from Dr Mendonca's share.
  • Trustees' legal costs of $82,000 (Remuneration Proceedings), $112,750 (Negligence Proceedings), $10,250 (Interpleader Proceedings) plus interest, to be paid out of Dr Mendonca's share of proceeds.