KJ v SJ (No 2) [2020] NSWSC 1100

KJ v SJ (No 2) [2020] NSWSC 1100

All parties' costs should be paid from SJ's managed estate on an indemnity basis because the application was reasonably made in the protective jurisdiction, all parties materially assisted the Court, and the proceedings were not adversarial; such orders are proper having regard to the protective purpose of the jurisdiction and consistent with established practice.

Parties
First Respondent: KJ; Applicant: SJ; Second Respondent: The Trust Company (Australia) Ltd; Fourth Respondent: Perpetual Trustee Company Ltd; Third Respondent: NSW Trustee and Guardian
Jurisdiction
Australia
Judgment Date
19 August 2020
Procedural Posture
Application for Revocation of Protective Declaration and Estate Management Orders Under S 86 NSW Trustee and Guardian Act 2009 (nsw) / Costs Determination Following Dismissal of Substantive Application
Outcome
Costs order made: costs of all parties to be paid out of SJ's estate on an indemnity basis, subject to amounts being agreed or assessed as reasonable and approval by NSW Trustee.
Legal Topics
Costs Orders, Protective Proceedings, Indemnity Costs, Discretion on Costs, Estate Management
Equity Protective Jurisdiction Costs Costs Orders Protective Proceedings Indemnity Costs Discretion on Costs Estate Management

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Parties

KJ

First Respondent

SJ

Applicant

The Trust Company (Australia) Ltd

Second Respondent

Perpetual Trustee Company Ltd

Fourth Respondent

NSW Trustee and Guardian

Third Respondent

Procedural Posture

Application for Revocation of Protective Declaration and Estate Management Orders Under S 86 NSW Trustee and Guardian Act 2009 (nsw) / Costs Determination Following Dismissal of Substantive Application

Legal Issues

  1. 1 Appropriate costs orders in protective proceedings where applicant was unsuccessful
  2. 2 Whether costs should follow the event or be paid out of the estate on an indemnity basis
  3. 3 The proper application of discretion for costs in protective jurisdiction

Ratio Decidendi

All parties' costs should be paid from SJ's managed estate on an indemnity basis because the application was reasonably made in the protective jurisdiction, all parties materially assisted the Court, and the proceedings were not adversarial; such orders are proper having regard to the protective purpose of the jurisdiction and consistent with established practice.

Court Disposition

Costs order made: costs of all parties to be paid out of SJ's estate on an indemnity basis, subject to amounts being agreed or assessed as reasonable and approval by NSW Trustee.

Orders

  • The applicant's costs of the application are to be paid out of the applicant's managed estate on an indemnity basis, in an agreed or assessed reasonable amount.
  • The third respondent's costs are to be paid out of the applicant's managed estate on an indemnity basis.