Bruce v Cobcroft (No 3) [2015] NSWSC 1414

Bruce v Cobcroft (No 3) [2015] NSWSC 1414

The tutor was appointed on the impetus of the plaintiff executor’s counsel, and under established principles and case law, the executor is obliged to indemnify the tutor for her reasonable costs and expenses, with recourse to indemnity from the estate; thus, orders are made in favour of the tutor and against the plaintiff executor for payment of her costs.

Parties
Plaintiff: Robert Ritchie Bruce; Defendant: Nicklas William Baxter Cobcroft; Defendant: David Gavin Baxter Cobcroft; Defendant: Robert Charley; Defendant: Helen Foote; Defendant: Carole Byrnes; Defendant: Peter Brown; Defendant: Jennifer Menzies Cobcroft; Defendant: Parraweena Pty Limited; Defendant: Parraweena Highlands Pty Ltd; Defendant: Daisy Evelyn Cobcroft; Defendant: Jasper Nicklas William Cobcroft; Defendant: Hermione Fiona Cobcroft; Defendant: Benjamin William Baxter Cobcroft; Defendant: Amanda Jane Cadwallader Cobcroft; Defendant: Teya Ellie Cobcroft; Tutor for Defendants 10 to 15: Michelle Anne Johnson
Jurisdiction
Australia
Judgment Date
25 September 2015
Procedural Posture
Equity / Costs and Indemnity Determination (third Cross Claim)
Outcome
Application for indemnity by tutor granted; orders made for payment of costs and indemnity by executor, with executor to be indemnified from estate. Third cross-claim in related proceeding dismissed with no order as to costs.
Legal Topics
Tutor for Minors, Indemnity for Tutors, Costs of Representation, Appointment of Tutor, Practice and Procedure
Equity Wills and Estates Tutor for Minors Indemnity for Tutors Costs of Representation Appointment of Tutor Practice and Procedure

Case Brief

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Parties

Robert Ritchie Bruce

Plaintiff

Nicklas William Baxter Cobcroft

Defendant

David Gavin Baxter Cobcroft

Defendant

Robert Charley

Defendant

Helen Foote

Defendant

Carole Byrnes

Defendant

Peter Brown

Defendant

Jennifer Menzies Cobcroft

Defendant

Parraweena Pty Limited

Defendant

Parraweena Highlands Pty Ltd

Defendant

Daisy Evelyn Cobcroft

Defendant

Jasper Nicklas William Cobcroft

Defendant

Hermione Fiona Cobcroft

Defendant

Benjamin William Baxter Cobcroft

Defendant

Amanda Jane Cadwallader Cobcroft

Defendant

Teya Ellie Cobcroft

Defendant

Michelle Anne Johnson

Tutor for Defendants 10 to 15

Procedural Posture

Equity / Costs and Indemnity Determination (third Cross Claim)

Legal Issues

  1. 1 Whether the tutor (Ms Johnson) for infant defendants is entitled to indemnity from the executor of the estate for her costs and expenses
  2. 2 Whether the appointment of the tutor was made on application of the plaintiff executor or by the court's own motion
  3. 3 Who bears ultimate responsibility for indemnifying the tutor

Ratio Decidendi

The tutor was appointed on the impetus of the plaintiff executor’s counsel, and under established principles and case law, the executor is obliged to indemnify the tutor for her reasonable costs and expenses, with recourse to indemnity from the estate; thus, orders are made in favour of the tutor and against the plaintiff executor for payment of her costs.

Court Disposition

Application for indemnity by tutor granted; orders made for payment of costs and indemnity by executor, with executor to be indemnified from estate. Third cross-claim in related proceeding dismissed with no order as to costs.

Orders

  • Plaintiff to pay the cross-claimant's (Ms Johnson's) costs of the third cross-claim, entitled to indemnity out of the estate of the late John Cobcroft.
  • Orders sought in the cross-claim are made in this proceeding; liberty to apply.