Gorman v Gorman [2004] NSWSC 741

Gorman v Gorman [2004] NSWSC 741

The Acting Master's discretion miscarried because key findings that the executors had not attempted to sell the property, had not satisfactorily explained the absence of accounts, and could have sold the properties earlier were not supported by the evidence. There was no sound basis for finding delinquency or unreasonable conduct sufficient to displace the executors' entitlement under Part 52A rule 42 to indemnity from the estate. Because the substantive motion was not determined on its merits, there was no relevant event, and the case did not justify a costs order against the defendants personally under the principles in Ex parte Lai Qin. The first and second defendants' appeals were...

Jurisdiction
Australia
Judgment Date
17 August 2004
Procedural Posture
Appeals and Cross Appeal Concerning Costs Orders in Estate Related Family Provision Act Proceedings / Appeal From Orders of Acting Master Berecry Made on 25 November 2002
Outcome
Appeals of the first and second defendants allowed; plaintiff's cross-appeal dismissed; Acting Master's costs orders set aside; executors' relevant costs ordered to be paid out of the estate; no order as to the plaintiff's costs of the notice of motion.
Legal Topics
['appeal From Acting Master' 'costs Discretion' 'executor Indemnity From Estate' 'trustee Costs' 'no Hearing on the Merits' 'family Provision Act Proceedings' 'estate Administration']
['procedure' 'costs' 'succession' 'equity'] ['appeal From Acting Master' 'costs Discretion' 'executor Indemnity From Estate' 'trustee Costs' 'no Hearing on the Merits' 'family Provision Act Proceedings' 'estate Administration']

Case Brief

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Procedural Posture

Appeals and Cross Appeal Concerning Costs Orders in Estate Related Family Provision Act Proceedings / Appeal From Orders of Acting Master Berecry Made on 25 November 2002

Legal Issues

  1. 1 ["Whether the Acting Master erred in ordering the first and second defendants to pay three-quarters of the plaintiff's costs personally." "Whether the Acting Master erred in ordering the first defendant to pay half the second defendant's costs personally and to bear his own costs personally." 'Whether the Acting Master erred in requiring the second defendant to bear half her own costs personally despite Part 52A rule 42 of the Supreme Court Rules.' 'Whether, where the substantive notice of motion was not determined on the merits, the costs orders could be supported by findings of unreasonable conduct or likely success.' "Whether the plaintiff's notice of motion filed on 14 December 2001 should remain on foot."]

Ratio Decidendi

The Acting Master's discretion miscarried because key findings that the executors had not attempted to sell the property, had not satisfactorily explained the absence of accounts, and could have sold the properties earlier were not supported by the evidence. There was no sound basis for finding delinquency or unreasonable conduct sufficient to displace the executors' entitlement under Part 52A rule 42 to indemnity from the estate. Because the substantive motion was not determined on its merits, there was no relevant event, and the case did not justify a costs order against the defendants personally under the principles in Ex parte Lai Qin. The first and second defendants' appeals were...

Court Disposition

Appeals of the first and second defendants allowed; plaintiff's cross-appeal dismissed; Acting Master's costs orders set aside; executors' relevant costs ordered to be paid out of the estate; no order as to the plaintiff's costs of the notice of motion.

Orders

  • ['Appeals of first defendant and second defendant allowed.' 'Cross appeal of plaintiff dismissed.' "Dismiss the claims in prayers 1 and 2 of the plaintiff's notice of motion filed on 14 December 2001." 'Set aside orders 1, 2, 3 and 4 made by Acting Master Berecry on 25 November 2002.' "Order that the costs of the...