Cartwright v Nairne [2017] NSWSC 1188

Cartwright v Nairne [2017] NSWSC 1188

Because the defendant failed to vacate estate property within the period allowed by the deceased's will and thereby caused the estate to incur the costs of possession proceedings, the plaintiff was entitled to costs and it was appropriate that those costs be paid by the defendant from his share of the deceased's estate. The Court was not satisfied that indemnity costs should be ordered.

Jurisdiction
Australia
Judgment Date
05 September 2017
Procedural Posture
Common Law Proceedings Seeking Possession of Estate Property and Leave to Issue a Writ of Possession; Costs / Final Ex Tempore Orders After the Defendant Vacated the Property and Did Not Appear
Outcome
Proceedings dismissed; defendant ordered to pay the plaintiff's costs as agreed or assessed, from his share of the deceased's estate.
Legal Topics
['costs of Proceedings' 'estate Administration' 'beneficiary in Occupation of Estate Property' "payment of Costs From Beneficiary's Share of Estate"]
['practice and Procedure' 'costs' 'succession'] ['costs of Proceedings' 'estate Administration' 'beneficiary in Occupation of Estate Property' "payment of Costs From Beneficiary's Share of Estate"]

Case Brief

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Procedural Posture

Common Law Proceedings Seeking Possession of Estate Property and Leave to Issue a Writ of Possession; Costs / Final Ex Tempore Orders After the Defendant Vacated the Property and Did Not Appear

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to costs of proceedings commenced because the defendant did not vacate estate property within the period allowed by the will.' "Whether the defendant should pay those costs from his share of the deceased's estate." 'Whether costs should be ordered on an indemnity basis.']

Ratio Decidendi

Because the defendant failed to vacate estate property within the period allowed by the deceased's will and thereby caused the estate to incur the costs of possession proceedings, the plaintiff was entitled to costs and it was appropriate that those costs be paid by the defendant from his share of the deceased's estate. The Court was not satisfied that indemnity costs should be ordered.

Court Disposition

Proceedings dismissed; defendant ordered to pay the plaintiff's costs as agreed or assessed, from his share of the deceased's estate.

Orders

  • ['The proceedings are dismissed.' "The defendant is to pay the plaintiff's costs, as agreed or assessed." 'The costs the subject of order (2) are to be paid by the defendant from his share of the assets of the deceased, Hazel Maude Nairne, pursuant to her last will and testament dated 21 March 2014.']