Lavery-Fenelon v Nicholas [2014] NSWCA 342

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lavery-Fenelon v Nicholas [2014] NSWCA 342 Hearing dates: 25 September 2014 Decision date: 25 September 2014 Before: Basten JA at [1]; Meagher JA at [19] Decision: 1. Dismiss the application for leave to appeal. 2. Order that the respondents' costs of the proceedings in this Court are to be paid by the applicant to be assessed on an ordinary basis. 3. The difference between the costs recovered by the respondents from the applicant and the respondents' costs of the proceedings, assessed on an indemnity basis, to be paid out of the deceased's estate. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - application for leave - whether leave should be granted to appeal dismissal of separate proceedings commenced by applicant - whether leave should be granted to appeal costs order - whether notations in orders can be appealed

SUCCESSION - executors and administrators - primary judge ordered distribution of estate - separate proceedings by the defendant seeking same order dismissed - costs ordered against the defendant - notations made in orders about outstanding issues with the estate Cases Cited: Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 Category: Principal judgment Parties: Rosemarie Lavery-Fenelon (Applicant) Peter Herbert Nicholas (First Respondent) Kit Ruth Clifford (Second Respondent) Representation: Counsel: Applicant self-represented D V Robinson (Respondents) Solicitors: Applicant self-represented Lane & O'Rourke (Respondents) File Number(s): 2014/148756 Decision under appeal Jurisdiction: 9111 Date of Decision: 2014-04-28 00:00:00 Before: Lindsay J File Number(s): 2013/385072

Judgment 1BASTEN JA: The applicant and the respondents are siblings and the executors appointed under their late mother's will. 2The administration of the estate has not proceeded smoothly. The testator died on 22 August 2010, leaving her estate to be divided equally between her four children (subject to a small bequest to a grandson). The bulk of the estate was comprised of the family home in Carlton. One daughter was not named as an executor, possibly because she was in ill health. That daughter, Suzanne Davis, brought proceedings in the Equity Division in 2011 seeking payment of an amount on account of her one-quarter share of the net residuary estate. Such an order was made on 26 March 2012. 3On 22 April 2014 the present applicant filed proceedings, naming the present respondents as defendants, seeking a similar payment to that made to her sister, together with an additional amount of $4,594.85. That matter, commenced in the Equity Division, was given the case number 2014/120943. 4In 2013 the present respondents commenced proceedings by way of summons in the Equity Division against the present applicant. That matter was given the case number 2013/385072. It is convenient to refer to it as the 2013 proceeding. 5In substance, both the 2013 proceeding and the applicant's later proceeding alleged that the other executor or executors was or were resisting finalisation of the administration of the estate and sought orders designed to ensure that the administration was completed expeditiously. The 2013 proceeding came before Lindsay J on 28 April 2014. 6This Court has been provided with a transcript of the hearing before Lindsay J and the applicant, in her oral submissions, has taken the Court through various matters which were raised in the course of the hearing. The hearing concluded with the judge making four orders and noting two matters. The notations were as follows: "1. NOTE that the plaintiffs advise the Court that the only business outstanding in administration of the estate ... is lodgement of a tax return for the year ended 30 June 2014, in respect of which a refund to the estate is anticipated. ... 6. NOTE that these orders and notations are intended to be a determination of all matters presently in dispute between the parties to these proceedings." 7The four orders (numbered 2-5) dealt with three matters. First, order 2 gave directions for the final disposition of the residuary estate, by way of payment of legal costs to each of two firms of solicitors which had acted for the estate, together with the reimbursement to the present applicant of a sum of $5,593.85 for legal expenses separately incurred by her. Otherwise, the estate was to be distributed in accordance with the will, to the four residuary beneficiaries in equal shares. 8The second matter (orders 3 and 4) dealt with the costs of the proceedings. The present applicant was ordered to pay the costs of the 2013 proceedings on the ordinary basis, with any difference between that amount and the full costs assessed on an indemnity basis to be met by the estate. 9Thirdly, order 5 dismissed the 2014 proceedings commenced by the present applicant. (No order was made as to the costs of those proceedings.) 10The applicant seeks leave to appeal from the two notations (numbered 1 and 6 above) and orders 3 and 5. With respect to "costs" (unspecified in the draft notice of appeal, but presumably the costs of the litigation) an order was sought that they be paid by the respondents, rather than coming out of the estate or being paid by the applicant. The applicant also sought an order that her summons "be allowed as documentation proof of perjury on the part of Peter Herbert Nicholas", Mr Nicholas being her brother and co-executor. 11Neither of the notations is an order made by the Court, nor did it reflect any finding made by the Court. There is no right of appeal from a "notation": cf Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 at [41]-[42]. The effect of the notations is inconsequential and need not be considered further. 12The draft notice of appeal does not challenge the substantive order made by the primary judge as to the distribution of the estate. No doubt that is because both the applicant and the respondents had sought orders that the administration be completed, although each blamed the other for delay and obstruction. 13Order 5, which was challenged, involved the dismissal of the summons filed by the applicant. Apart from the question of costs involved in the administration of the estate, that summons sought a payment to the applicant of an amount of $4,594.85 (being less than the amount ordered to be paid to the applicant by the primary judge pursuant to order 2(c) which included filing fees incurred in the registry by her), and, as noted above, a proportionate payment from the net residue equal to that already made to the applicant's sister. 14The reason for not dismissing the summons is said in the draft notice of appeal noted above to relate to alleged "perjury" on the part of the applicant's brother. No such order or declaration was sought in the summons, nor would it have been made if sought. The basis for the allegation was identified in the applicant's summary of argument and related to the alleged failure of Mr Nicholas to inform three service providers of the death of the deceased. This was not an issue which could properly be raised in the proceedings in the form in which they had been commenced. Nor was there any prospect of any amendment being granted in a form which would have allowed such issues to be agitated in the Court. There is no basis for doubting the correctness of the order made by the primary judge dismissing the applicant's summons. 15There remains the challenge to order 3 that the applicant pay the respondent's costs of the proceedings commenced by the respondents in the Equity Division. 16Questions of costs are in the discretion of the judge hearing the proceeding. Generally they follow the event. In her oral submissions, the applicant claimed she was required to pay costs incurred by the respondents when they were not ready to proceed. If costs were not reasonably incurred they would not be recoverable under a party and party costs order. The applicant also stated in the course of oral submissions that she did not understand the basis on which costs had been sought and the estimate given by the counsel for the present respondents before the primary judge. 17It is clear from comments made by the primary judge that the orders which he made involved elements of compromise on both sides. These particular proceedings involved directions with respect to the administration of an estate, dealt with in a summary fashion in a duty list. It would not be in accordance with principle to grant leave to appeal in respect of such an order. Nor is there any basis for thinking it was an inappropriate order in the circumstances. 18It follows that the application for leave to appeal should be dismissed. The orders I propose are: 1. Dismiss the application for leave to appeal. 2. Order that the respondents' costs of the proceedings in this Court are to be paid by the applicant to be assessed on an ordinary basis. 3. The difference between the costs recovered by the respondents from the applicant and the respondents' costs of the proceedings, assessed on an indemnity basis, to be paid out of the deceased's estate. 19MEAGHER JA: I agree with Basten JA. The only order made by the primary judge which was not in substance agreed in by the applicant, Ms Lavery-Fenelon, was the order for payment of the costs of the proceedings in which the orders were made. That costs order involved the exercise of a discretion and an amount estimated at the time not to exceed $25,000 assessed on an indemnity basis. The exercise of the discretion is not shown to have involved arguable error and, in any event, the amount involved would not justify a grant of leave to appeal to this court with the further costs which that would necessarily entail

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