P v NSW Trustee and Guardian (No 2) [2015] NSWSC 676

P v NSW Trustee and Guardian (No 2) [2015] NSWSC 676

Because the general rule in protective proceedings requires costs be determined by reference to what is proper in the circumstances, and taking into account the modest estate, the beneficial contribution of the second defendant, and the need for the protected estate to be preserved, a nominal costs award (rather than full indemnity or no order) is proper.

Parties
Plaintiff: Protected Person; First Defendant: NSW Trustee and Guardian; Second Defendant: Son of Protected Person
Jurisdiction
Australia
Judgment Date
01 June 2015
Procedural Posture
Protective Jurisdiction Appeal (costs) / Post Judgment Application for Costs
Outcome
Order for costs in favour of the second defendant (son) in the sum of $5,000 out of the plaintiff's estate
Legal Topics
Costs in Protective Proceedings, Protective Jurisdiction, Lump Sum Costs Orders
Equity Costs Protective Jurisdiction Costs in Protective Proceedings Lump Sum Costs Orders

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Parties

Protected Person

Plaintiff

NSW Trustee and Guardian

First Defendant

Son of Protected Person

Second Defendant

Procedural Posture

Protective Jurisdiction Appeal (costs) / Post Judgment Application for Costs

Legal Issues

  1. 1 Whether an order for costs should be made in protective proceedings
  2. 2 Application of 'costs follow the event' versus protective jurisdiction rules in respect of costs
  3. 3 Appropriate quantum and basis for a costs award from a protected estate

Ratio Decidendi

Because the general rule in protective proceedings requires costs be determined by reference to what is proper in the circumstances, and taking into account the modest estate, the beneficial contribution of the second defendant, and the need for the protected estate to be preserved, a nominal costs award (rather than full indemnity or no order) is proper.

Court Disposition

Order for costs in favour of the second defendant (son) in the sum of $5,000 out of the plaintiff's estate

Orders

  • ORDER that an amount of $5,000 be paid to the second defendant, out of the estate of the plaintiff, on account of costs incurred by him in these proceedings.
  • NOTE that no orders as to costs are otherwise made.