Bevan v Napoli [2022] NSWSC 1132

Bevan v Napoli [2022] NSWSC 1132

The plaintiff was not a non-associated third-party payer because clauses 3 and 4 of the Will did not impose on him a legal obligation to pay all or any part of Mrs Bevan's legal costs for services provided to her. The only legal liability to pay the law practice was Mrs Bevan's, and she had paid the fees. The executor's obligation was to distribute the estate equally subject to deducting the relevant legal costs from the plaintiff's share, which did not create a legal obligation on the plaintiff to pay the law practice, the estate, or another person for the purposes of s 171. Shillington v Harries remained authoritative and Boyce v McIntyre was distinguishable because it concerned a...

Jurisdiction
Australia
Judgment Date
25 August 2022
Procedural Posture
Application for Review of a Costs Assessment Decision / Review of the Manager, Costs Assessment's Decision Refusing to Accept and Allocate the Plaintiff's Costs Assessment Application
Outcome
The review failed and the plaintiff's summons filed 24 November 2021 was dismissed; costs were reserved.
Legal Topics
['costs Assessment' 'non Associated Third Party Payer' 'standing to Apply for Costs Assessment' "review of Registrar's Decision" 'construction of Will Clauses Concerning Legal Costs']
['costs' 'legal Profession' 'wills and Estates'] ['costs Assessment' 'non Associated Third Party Payer' 'standing to Apply for Costs Assessment' "review of Registrar's Decision" 'construction of Will Clauses Concerning Legal Costs']

Case Brief

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Procedural Posture

Application for Review of a Costs Assessment Decision / Review of the Manager, Costs Assessment's Decision Refusing to Accept and Allocate the Plaintiff's Costs Assessment Application

Legal Issues

  1. 1 ['Whether the plaintiff was a non-associated third-party payer within s 171 of the Legal Profession Uniform Law 2014 (NSW).' "Whether clauses 3 and 4 of Mrs Bevan's Will imposed on the plaintiff a legal obligation to pay legal costs for legal services provided to Mrs Bevan." 'Whether Shillington v Harries [2013] NSWSC 2013 was distinguishable or should not be followed.' "Whether the Manager, Costs Assessment erred in refusing to accept and allocate the plaintiff's costs assessment application."]

Ratio Decidendi

The plaintiff was not a non-associated third-party payer because clauses 3 and 4 of the Will did not impose on him a legal obligation to pay all or any part of Mrs Bevan's legal costs for services provided to her. The only legal liability to pay the law practice was Mrs Bevan's, and she had paid the fees. The executor's obligation was to distribute the estate equally subject to deducting the relevant legal costs from the plaintiff's share, which did not create a legal obligation on the plaintiff to pay the law practice, the estate, or another person for the purposes of s 171. Shillington v Harries remained authoritative and Boyce v McIntyre was distinguishable because it concerned a...

Court Disposition

The review failed and the plaintiff's summons filed 24 November 2021 was dismissed; costs were reserved.

Orders

  • ["The plaintiff's summons filed 24 November 2021 is dismissed." 'Costs are reserved.']