Tuitupou v Davies [2019] NSWSC 160

Tuitupou v Davies [2019] NSWSC 160

No party acted so unreasonably as to warrant costs orders against them; confusion between solicitors led to unnecessary expense but does not reach threshold for disentitling conduct; executors entitled to indemnity out of estate for costs; insufficient notice and evidence for personal costs order against solicitors.

Parties
First Plaintiff: Natalie Kim Tuitupou; Second Plaintiff: Kyle Terrence Johnson; First Defendant: Kathryn Elise Davies; Second Defendant: Shannon Kate Lee
Jurisdiction
Australia
Judgment Date
27 February 2019
Procedural Posture
Application for Costs in Resolved Family Provision Proceedings / Post Settlement Costs Dispute; Hearing of Amended Notice of Motion Filed 14 February 2019
Outcome
Plaintiffs' amended notice of motion dismissed; no personal costs order against defendants' solicitors; each party to bear own costs for hearing of costs application on 18 February 2019; parties' costs since 13 December 2018 to be paid as per consent orders made 18 February 2019 for balance of proceedings.
Legal Topics
Costs in Settled Proceedings, Payment of Executor Costs From Estate, Personal Costs Orders Against Solicitors, Application of S 73 Civil Procedure Act 2005 (nsw)
Succession Law Civil Procedure Costs in Settled Proceedings Payment of Executor Costs From Estate Personal Costs Orders Against Solicitors Application of S 73 Civil Procedure Act 2005 (nsw)

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Parties

Natalie Kim Tuitupou

First Plaintiff

Kyle Terrence Johnson

Second Plaintiff

Kathryn Elise Davies

First Defendant

Shannon Kate Lee

Second Defendant

Procedural Posture

Application for Costs in Resolved Family Provision Proceedings / Post Settlement Costs Dispute; Hearing of Amended Notice of Motion Filed 14 February 2019

Legal Issues

  1. 1 Should the defendants pay the plaintiffs' costs of the s 73 application, or from 13 December 2018?
  2. 2 Should the defendants be indemnified out of the estate for their costs from that time?
  3. 3 Should any costs order be made personally against the defendants' solicitors?

Ratio Decidendi

No party acted so unreasonably as to warrant costs orders against them; confusion between solicitors led to unnecessary expense but does not reach threshold for disentitling conduct; executors entitled to indemnity out of estate for costs; insufficient notice and evidence for personal costs order against solicitors.

Court Disposition

Plaintiffs' amended notice of motion dismissed; no personal costs order against defendants' solicitors; each party to bear own costs for hearing of costs application on 18 February 2019; parties' costs since 13 December 2018 to be paid as per consent orders made 18 February 2019 for balance of proceedings.

Orders

  • Dismiss the plaintiffs' amended notice of motion filed 14 February 2019 with no order as to the costs of the hearing on 18 February 2019 (to the intent that each party bear his or her own costs of that hearing).
  • Order that, save as provided in order 1, the parties' costs since 13 December 2018 be paid in the same way as the costs orders made by consent on 18 February 2019 for the balance of the proceedings.