McCusker v Rutter [2010] NSWCA 318

McCusker v Rutter [2010] NSWCA 318

The trial judge's discretion on costs orders was flawed by unsupportable findings related to improper purpose. The Court of Appeal exercised discretion afresh, concluding that the appellant performed her executor duties properly and is entitled to costs from the estate for defending Jane and David's claim, and that Jane and David should jointly and severally pay most of the appellant's costs of the proceedings. The appellant is also entitled to costs incurred in proceedings brought by her daughter Flossiy out of the estate, and the third respondent may retain relevant costs out of the estate.

Parties
Appellant: Anne Maire McCusker; First Respondent: David Andrew Rutter; Second Respondent: Jane Elizabeth Rutter; Third Respondent: Kenneth Bruce Hancock
Jurisdiction
Australia
Judgment Date
26 November 2010
Procedural Posture
Appeal / Judgment in Court of Appeal
Outcome
Appeal allowed
Legal Topics
Family Provision, Costs, Executor Duties
Wills and Estates Civil Procedure Family Provision Costs Executor Duties

Case Brief

Summary, issues, holding and outcome

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Parties

Anne Maire McCusker

Appellant

David Andrew Rutter

First Respondent

Jane Elizabeth Rutter

Second Respondent

Kenneth Bruce Hancock

Third Respondent

Procedural Posture

Appeal / Judgment in Court of Appeal

Legal Issues

  1. 1 Whether trial judge's exercise of discretion miscarried regarding costs orders
  2. 2 Whether the appellant should receive costs against Jane and David for unsuccessful Family Provision Act claims
  3. 3 Whether the appellant should not be able to claim her costs out of the estate

Ratio Decidendi

The trial judge's discretion on costs orders was flawed by unsupportable findings related to improper purpose. The Court of Appeal exercised discretion afresh, concluding that the appellant performed her executor duties properly and is entitled to costs from the estate for defending Jane and David's claim, and that Jane and David should jointly and severally pay most of the appellant's costs of the proceedings. The appellant is also entitled to costs incurred in proceedings brought by her daughter Flossiy out of the estate, and the third respondent may retain relevant costs out of the estate.

Court Disposition

Appeal allowed

Orders

  • Respondents David Andrew Rutter and Jane Elizabeth Rutter to pay jointly and severally the appellant's and third respondent's costs of the appeal.
  • Set aside the costs orders made by McLaughlin AsJ.