Dixon v Dixon (No 2) [2022] NSWSC 944

Dixon v Dixon (No 2) [2022] NSWSC 944

James was entitled to costs against Lois for the discontinued family provision application, and indemnity out of the estate, because no relief was obtained against him, the claim against him was abandoned, and he was the appropriate executor-defendant to that application. Eunice, however, was the unsuccessful respondent to the s 70 application from 1 April 2022 and had acted unreasonably in continuing as trustee when her position was untenable and in failing to seek judicial advice or bring her own application for replacement; she therefore had to pay Lois' relevant costs and was refused recourse to the trust for her own costs or the costs awarded against her.

Jurisdiction
Australia
Judgment Date
15 July 2022
Procedural Posture
Estate Proceedings Involving a Discontinued Family Provision Claim and an Application Under S 70 of the Trustee Act 1925 for Appointment of a New Trustee of a Testamentary Trust / Costs Determination After Judgment on the Trustee Removal Application
Outcome
Costs orders made; Stephen Dixon appointed trustee in place of Eunice Helen Morgan; Eunice denied recourse to the trust for costs.
Legal Topics
['costs in Estate Proceedings' 'family Provision Claim Discontinued' 'removal and Replacement of Trustee' 'trustee Indemnity From Trust or Estate Assets' 'judicial Advice' 'offers of Compromise']
['equity' 'succession' 'trusts' 'civil Procedure'] ['costs in Estate Proceedings' 'family Provision Claim Discontinued' 'removal and Replacement of Trustee' 'trustee Indemnity From Trust or Estate Assets' 'judicial Advice' 'offers of Compromise']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Estate Proceedings Involving a Discontinued Family Provision Claim and an Application Under S 70 of the Trustee Act 1925 for Appointment of a New Trustee of a Testamentary Trust / Costs Determination After Judgment on the Trustee Removal Application

Legal Issues

  1. 1 ['Whether James, as executor, should receive costs from Lois and indemnity out of the estate for responding to the discontinued family provision application.' 'Whether Lois should receive costs from Eunice for the successful s 70 Trustee Act 1925 application to replace Eunice as trustee.' 'Whether Eunice should have recourse to the trust or estate for her own costs or for costs awarded against her.' "Whether Eunice's failure to obtain judicial advice and her resistance to removal made her conduct unreasonable for the purposes of UCPR r 42.25."]

Ratio Decidendi

James was entitled to costs against Lois for the discontinued family provision application, and indemnity out of the estate, because no relief was obtained against him, the claim against him was abandoned, and he was the appropriate executor-defendant to that application. Eunice, however, was the unsuccessful respondent to the s 70 application from 1 April 2022 and had acted unreasonably in continuing as trustee when her position was untenable and in failing to seek judicial advice or bring her own application for replacement; she therefore had to pay Lois' relevant costs and was refused recourse to the trust for her own costs or the costs awarded against her.

Court Disposition

Costs orders made; Stephen Dixon appointed trustee in place of Eunice Helen Morgan; Eunice denied recourse to the trust for costs.

Orders

  • ["Order that the plaintiff pay the first defendant's costs of the proceedings, to the extent attributable to the application for family provision, and including half of the costs of the costs argument." "Order that the first defendant's solicitor-client costs of the proceedings, to the extent attributable to the...