David Resler Walton by his tutor John Mann v Terence Hartman as executor of the estate of Wanda Resler [2019] NSWSC 1749

David Resler Walton by his tutor John Mann v Terence Hartman as executor of the estate of Wanda Resler [2019] NSWSC 1749

Mr Russo, by bringing a substantive motion for removal of the tutor, was properly treated as an applicant (not amicus curiae or intervener) with rights and responsibilities of that status. Although his motion was misconceived and unsupported by evidence, there was insufficient basis to order indemnity costs against him; appropriate order was that he or his firm pay other parties' costs on an ordinary basis, with any shortfall to be indemnified from the estate.

Jurisdiction
Australia
Judgment Date
13 December 2019
Procedural Posture
Equity Proceedings / Motion to Remove Court Appointed Tutor, Costs Ruling
Outcome
Motion discontinued; costs awarded against applicant (Mr Russo) on ordinary basis
Legal Topics
['tutor Appointment/removal' 'standing to Bring Motion' 'costs Orders' 'amicus Curiae and Intervener Roles']
['civil Procedure' 'equity'] ['tutor Appointment/removal' 'standing to Bring Motion' 'costs Orders' 'amicus Curiae and Intervener Roles']

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Procedural Posture

Equity Proceedings / Motion to Remove Court Appointed Tutor, Costs Ruling

Legal Issues

  1. 1 ['Whether Mr Russo had standing to seek removal of the tutor' 'Whether the tutor Mr Mann should be removed' 'Appropriate costs order on discontinuance/withdrawal of the motion']

Ratio Decidendi

Mr Russo, by bringing a substantive motion for removal of the tutor, was properly treated as an applicant (not amicus curiae or intervener) with rights and responsibilities of that status. Although his motion was misconceived and unsupported by evidence, there was insufficient basis to order indemnity costs against him; appropriate order was that he or his firm pay other parties' costs on an ordinary basis, with any shortfall to be indemnified from the estate.

Court Disposition

Motion discontinued; costs awarded against applicant (Mr Russo) on ordinary basis

Orders

  • ['Mr Russo to pay the costs of the other parties on an ordinary basis.' 'Any shortfall between those costs and recovery from Mr Russo to be indemnified out of the estate.' 'Parties to bring in short minutes to reflect these reasons.']