Murray v McOnie (No 2) [2019] NSWSC 392

Murray v McOnie (No 2) [2019] NSWSC 392

The executor's costs of the judicial advice application and hearing are to be borne out of the estate on the indemnity basis, given the necessity of the application for estate administration; the executor's additional costs occasioned by the conduct of Megan McOnie, particularly prolongation of litigation and repeated adjournments, are to be paid by Megan McOnie on an indemnity basis. No special costs order is justified against the McOnie brothers. The executor may reduce Megan McOnie's share in the estate to satisfy these costs if unpaid.

Jurisdiction
Australia
Judgment Date
09 April 2019
Procedural Posture
Application for Judicial Advice / Determination of Costs Following Application for Judicial Advice
Outcome
Costs orders made: executor's core costs out of estate on indemnity basis; additional costs relating to delays by first defendant (Megan McOnie) payable by her on indemnity basis; no costs order against other defendants; notation that the executor may reduce first defendant's share accordingly.
Legal Topics
['costs' 'judicial Advice' 'estate Administration']
['equity'] ['costs' 'judicial Advice' 'estate Administration']

Case Brief

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Procedural Posture

Application for Judicial Advice / Determination of Costs Following Application for Judicial Advice

Legal Issues

  1. 1 ["Whether executor's costs should be borne out of the estate or by defendants" 'Whether conduct of parties justifies indemnity costs orders']

Ratio Decidendi

The executor's costs of the judicial advice application and hearing are to be borne out of the estate on the indemnity basis, given the necessity of the application for estate administration; the executor's additional costs occasioned by the conduct of Megan McOnie, particularly prolongation of litigation and repeated adjournments, are to be paid by Megan McOnie on an indemnity basis. No special costs order is justified against the McOnie brothers. The executor may reduce Megan McOnie's share in the estate to satisfy these costs if unpaid.

Court Disposition

Costs orders made: executor's core costs out of estate on indemnity basis; additional costs relating to delays by first defendant (Megan McOnie) payable by her on indemnity basis; no costs order against other defendants; notation that the executor may reduce first defendant's share accordingly.

Orders

  • ['Subject to order 2, order that the costs of the plaintiff, in her capacity as executor of the estate of the late Agnese McOnie, of the summons for judicial advice filed 12 April 2018 be borne out of the said estate on the indemnity basis.' "The plaintiff's costs in her capacity as executor, of court attendances...