Chick & Anor v Grosfeld (No. 4) [2013] NSWSC 509

Chick & Anor v Grosfeld (No. 4) [2013] NSWSC 509

Plaintiffs are entitled to recover their costs of the proceedings from Mr Grosfeld on the ordinary basis, and to be indemnified out of the estate for any shortfall not recoverable from him. Mr Grosfeld is not entitled to indemnity out of the estate for his defence costs and must repay to the estate any moneys so used, as his conduct warranted removal and he failed to seek judicial advice prior to defending the claim for his removal.

Parties
1st Plaintiff: Murray Chick; 2nd Plaintiff: Kimberley Runia; Defendant: Johannes Theodorus Grosfeld
Jurisdiction
Australia
Judgment Date
10 May 2013
Procedural Posture
Equity Costs Application / Judgment on Costs
Outcome
Orders made in accordance with paragraph [34] of judgment.
Legal Topics
Costs, Removal of Executor, Indemnity From Estate
Equity Succession Trusts Costs Removal of Executor Indemnity From Estate

Case Brief

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Parties

Murray Chick

1st Plaintiff

Kimberley Runia

2nd Plaintiff

Johannes Theodorus Grosfeld

Defendant

Procedural Posture

Equity Costs Application / Judgment on Costs

Legal Issues

  1. 1 What costs order should be made against Mr Grosfeld?
  2. 2 Should plaintiffs receive their costs out of the estate?
  3. 3 Is Mr Grosfeld entitled to be indemnified out of the estate for his costs or required to repay estate funds used for his defence?

Ratio Decidendi

Plaintiffs are entitled to recover their costs of the proceedings from Mr Grosfeld on the ordinary basis, and to be indemnified out of the estate for any shortfall not recoverable from him. Mr Grosfeld is not entitled to indemnity out of the estate for his defence costs and must repay to the estate any moneys so used, as his conduct warranted removal and he failed to seek judicial advice prior to defending the claim for his removal.

Court Disposition

Orders made in accordance with paragraph [34] of judgment.

Orders

  • The defendant pay the plaintiffs' costs of the proceedings on the ordinary basis.
  • The plaintiffs be indemnified out of the estate of the late Barry Chick if and to the extent they are unable to recover costs from the defendant.