James v Douglas [2016] NSWCA 178

James v Douglas [2016] NSWCA 178

The will did not confer upon the Appointor (Mr James) the power to remove and appoint trustees of the Capital Protected Trust; the construction of the will and its express terms did not support such a power, and costs were properly ordered to follow the event with indemnity costs justified by the conduct of the appellants.

Parties
First Appellant: David Anthony James; Second Appellant: Janina Kik; Third Appellant: Trudy James; First Respondent: Zeta Kathleen Douglas; Second Respondent: Marea Gilbert; Third Respondent: Lyn Ison; Fourth Respondent: Angela Webber; Fifth Respondent: John Croce Palmieri
Jurisdiction
Australia
Judgment Date
28 July 2016
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed; leave to appeal granted
Legal Topics
Construction of Testamentary Trusts, Power to Appoint and Remove Trustees, Costs in Estate Proceedings, Probate Exception, Rectification of Wills
Wills & Estates Civil Procedure Construction of Testamentary Trusts Power to Appoint and Remove Trustees Costs in Estate Proceedings Probate Exception Rectification of Wills

Case Brief

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Parties

David Anthony James

First Appellant

Janina Kik

Second Appellant

Trudy James

Third Appellant

Zeta Kathleen Douglas

First Respondent

Marea Gilbert

Second Respondent

Lyn Ison

Third Respondent

Angela Webber

Fourth Respondent

John Croce Palmieri

Fifth Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the will conferred power on the Appointor to remove and appoint trustees of the Capital Protected Trust
  2. 2 Whether proceedings justified departure from general rule that costs follow the event
  3. 3 Whether conduct of proceedings involved 'delinquency' justifying indemnity costs

Ratio Decidendi

The will did not confer upon the Appointor (Mr James) the power to remove and appoint trustees of the Capital Protected Trust; the construction of the will and its express terms did not support such a power, and costs were properly ordered to follow the event with indemnity costs justified by the conduct of the appellants.

Court Disposition

Appeal dismissed; leave to appeal granted

Orders

  • Grant leave to the first appellant to appeal from the orders made by McDougall J on 25 March 2015.
  • Dismiss the first appellant's appeal, by the Amended Notice of Appeal, from the orders made on 25 March 2015.