The Estate of Arthur Michael Falco; Falco v Lambert (No 3) [2015] NSWSC 1343

The Estate of Arthur Michael Falco; Falco v Lambert (No 3) [2015] NSWSC 1343

The Court confirmed that the executor was entitled to indemnity from the estate for reasonable solicitor’s fees, even in the absence of a charging clause. The review of the registrar’s moderation was only allowed to the extent of further concessions by the executor, increasing the refund to be made to the estate, but no order was made against the solicitor as the law and procedure require the refund to be sought from the executor. As to the claim against the solicitor, the Court found that although there is an arguable Barnes v Addy claim, the pleading is deficient: repeated reliance on the absence of a charging clause is irrelevant and details of the alleged breach and notice required...

Jurisdiction
Australia
Judgment Date
14 September 2015
Procedural Posture
Equity Probate List / Interlocutory Application for Review of Registrar’s Decision and Application to Strike Out Claim/discontinue/seek Stay
Outcome
Registrar’s decision varied only to increase the amount to be refunded to the estate by the executor; no order that solicitor refund fees; claim against solicitor struck out with leave to replead; proceedings against solicitor stayed pending determination of accounts; application for separate question refused.
Legal Topics
['executor’s Costs and Indemnity' 'duty to Beneficiaries' 'barnes V Addy Liability' 'review of Registrar’s Moderation of Fees' 'passing of Accounts' 'striking Out and Pleadings' 'stay of Proceedings']
['wills and Probate' 'equity'] ['executor’s Costs and Indemnity' 'duty to Beneficiaries' 'barnes V Addy Liability' 'review of Registrar’s Moderation of Fees' 'passing of Accounts' 'striking Out and Pleadings' 'stay of Proceedings']

Case Brief

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Procedural Posture

Equity Probate List / Interlocutory Application for Review of Registrar’s Decision and Application to Strike Out Claim/discontinue/seek Stay

Legal Issues

  1. 1 ['Whether the registrar’s moderation of executor’s solicitor fees payable out of estate requires review;' 'Whether the order for refund of legal fees should run against the solicitor as well as the executor;' 'Whether summary dismissal or striking out of proceedings against the solicitor is warranted;' 'Whether a Barnes v Addy claim by beneficiaries is arguable against the solicitor for fees paid from estate but disallowed;']

Ratio Decidendi

The Court confirmed that the executor was entitled to indemnity from the estate for reasonable solicitor’s fees, even in the absence of a charging clause. The review of the registrar’s moderation was only allowed to the extent of further concessions by the executor, increasing the refund to be made to the estate, but no order was made against the solicitor as the law and procedure require the refund to be sought from the executor. As to the claim against the solicitor, the Court found that although there is an arguable Barnes v Addy claim, the pleading is deficient: repeated reliance on the absence of a charging clause is irrelevant and details of the alleged breach and notice required...

Court Disposition

Registrar’s decision varied only to increase the amount to be refunded to the estate by the executor; no order that solicitor refund fees; claim against solicitor struck out with leave to replead; proceedings against solicitor stayed pending determination of accounts; application for separate question refused.

Orders

  • ['Amount ordered to be refunded by Peter John Lambert to estate increased by $3,585.10 plus GST (from $25,785.90 plus GST to $29,371.00 plus GST) due to concessions;' 'No variation to make Peter Kenneth White liable to refund fees;' 'Claim against Peter Kenneth White struck out with leave to replead;' 'Proceedings...