Empson v Hagar [2016] NSWSC 129

Empson v Hagar [2016] NSWSC 129

The Defendant did not pay the amount he had agreed to pay to the estate within the time imposed by the Consent Orders. In those circumstances, equity justified an award of interest to the estate, but the appropriate compensatory rate, having regard to all of the evidence, was 5 per cent per annum rather than the 10 per cent mortgage rate. The Defendant's motion could not succeed on the evidence, and neither party should receive costs given the modest amounts, the limited success, and deficiencies in the evidence and conduct of the motions.

Jurisdiction
Australia
Judgment Date
24 February 2016
Procedural Posture
Succession; Administration of Estates; Procedural and Other Rulings / Hearing of Two Notices of Motion Following Settlement of Probate Proceedings
Outcome
The parties were directed to provide Short Minutes of Order reflecting the reasons within 14 days; if agreed, orders could be made in Chambers, otherwise the matter was stood over to 3:30 p.m. on 15 March 2016. The Plaintiff's notice of motion was otherwise to be dismissed with no order as to costs, and the...
Legal Topics
['administration of Estates' 'executors' 'probate' 'consent Orders' 'interest on Money Payable to an Estate' 'costs of Notices of Motion' 'discharge of Mortgage and Transmission Application']
['succession' 'equity' 'civil Procedure'] ['administration of Estates' 'executors' 'probate' 'consent Orders' 'interest on Money Payable to an Estate' 'costs of Notices of Motion' 'discharge of Mortgage and Transmission Application']

Case Brief

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Procedural Posture

Succession; Administration of Estates; Procedural and Other Rulings / Hearing of Two Notices of Motion Following Settlement of Probate Proceedings

Legal Issues

  1. 1 ['Whether the Defendant should pay money claimed by the Plaintiff to the estate following the Consent Orders resolving the Probate dispute.' 'Whether the Defendant was liable to pay interest to the estate for late payment of the amount agreed under the Consent Orders, and at what rate.' 'Whether the Plaintiff should provide a Discharge of Mortgage and Transmission Application in registrable form or whether further probate-related orders should be made.' 'Whether either party should receive costs of their notice of motion.']

Ratio Decidendi

The Defendant did not pay the amount he had agreed to pay to the estate within the time imposed by the Consent Orders. In those circumstances, equity justified an award of interest to the estate, but the appropriate compensatory rate, having regard to all of the evidence, was 5 per cent per annum rather than the 10 per cent mortgage rate. The Defendant's motion could not succeed on the evidence, and neither party should receive costs given the modest amounts, the limited success, and deficiencies in the evidence and conduct of the motions.

Court Disposition

The parties were directed to provide Short Minutes of Order reflecting the reasons within 14 days; if agreed, orders could be made in Chambers, otherwise the matter was stood over to 3:30 p.m. on 15 March 2016. The Plaintiff's notice of motion was otherwise to be dismissed with no order as to costs, and the...

Orders

  • ['The Defendant, within 7 days, is to pay to the trust account of Mr Noonan $2,807.01 to be held in trust for the estate.' 'The Defendant, within 7 days, is to pay to the trust account of Mr Noonan $1,075 on account of interest to be held in trust for the estate.' 'Each of the parties, within 7 days, is to authorise...