Latham v Hubbard; Estate of Ross [2014] NSWSC 805

Latham v Hubbard; Estate of Ross [2014] NSWSC 805

Costs assessed 'on a trustee basis' under the Deed of Family Arrangement and the consent orders are to be quantified in the same manner as if the applicant had been appointed executor, namely, allowing all costs properly and reasonably incurred and not incurred in breach of trustee duties. Although s 98(1)(c) CPA and UCPR focus on ordinary and indemnity bases, courts may give effect to other bases, such as trustee basis, where agreed. The applicant is entitled to assessment of his costs on this understanding, and not strictly on the indemnity basis against the estate.

Jurisdiction
Australia
Judgment Date
19 June 2014
Procedural Posture
Probate Application and Associated Costs Determination / Post Settlement, Application for Determination of Costs Order
Outcome
Application determined - directions and orders made as to costs assessment and basis.
Legal Topics
['costs Trustee Basis' 'probate Disputes' 'interpretation of Consent Orders' 'assessment of Costs' 'trustee Indemnity']
['equity' 'probate' 'costs'] ['costs Trustee Basis' 'probate Disputes' 'interpretation of Consent Orders' 'assessment of Costs' 'trustee Indemnity']

Case Brief

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Procedural Posture

Probate Application and Associated Costs Determination / Post Settlement, Application for Determination of Costs Order

Legal Issues

  1. 1 ["Whether an order for costs on a 'trustee basis' allows for assessment on a basis other than ordinary or indemnity under current law" "Meaning and implementation of 'trustee basis' costs in the context of a deed of family arrangement and consent orders"]

Ratio Decidendi

Costs assessed 'on a trustee basis' under the Deed of Family Arrangement and the consent orders are to be quantified in the same manner as if the applicant had been appointed executor, namely, allowing all costs properly and reasonably incurred and not incurred in breach of trustee duties. Although s 98(1)(c) CPA and UCPR focus on ordinary and indemnity bases, courts may give effect to other bases, such as trustee basis, where agreed. The applicant is entitled to assessment of his costs on this understanding, and not strictly on the indemnity basis against the estate.

Court Disposition

Application determined - directions and orders made as to costs assessment and basis.

Orders

  • ["Direct that the Manager, Costs Assessment, refer Mr Latham's bill for assessment pursuant to the orders of 7 August 2013" "Direct assessment of Mr Latham's costs as if he had been appointed executor under the 2004 will" "Order Watson's costs of Latham's notice of motion (including hearing costs) be paid out of the...