Vidyagauri Hiralal v Nitin Hiralal & Ors (No.2) [2013] NSWSC 1160

Procedural Posture

Costs in Equity Division Proceedings / Costs Judgment Following Dismissal of the Defendants' Motion of 25 May 2012 Challenging Service Outside the Jurisdiction, Seeking a Stay on Forum Non Conveniens Grounds and Alternatively Seeking to Strike Out the Proceedings as Frivolous and Vexatious

Legal Issues

1. 1 ["Whether the plaintiff, having successfully resisted the defendants' motion, should have her costs against the defendants on the ordinary basis" 'Whether the plaintiff should receive indemnity costs or reimbursement of costs out of the trust fund' "Whether the defendants may have recourse to trust funds for their own costs of the motion or for their liability to pay the plaintiff's costs" "Whether the interlocutory state of the proceedings and the plaintiff's capacity justified orders affecting trust funds"]

Ratio Decidendi

Because the plaintiff successfully resisted the defendants' interlocutory motion, she was entitled to ordinary costs against the defendants. Indemnity costs or immediate payment from the trust fund were not appropriate because the findings were interlocutory, key matters about the trust and alleged misconduct had not been finally established, and the plaintiff was not strictly acting only as trustee and was likely to benefit personally as beneficiary. The defendants could not have recourse to the trust fund for the motion because they had a case to answer concerning administration of the trust, had not shown their unsuccessful position was proper, and payment would require authority of...

Court Disposition

Defendants ordered to pay the plaintiff's costs of the defendants' motion of 25 May 2012 on the ordinary basis; defendants denied recourse to trust funds for their own costs of the motion or their liability for the plaintiff's costs; plaintiff's further claims for indemnity costs or immediate payment out of the...

Orders

• ["The defendants pay the plaintiff's costs of the defendants' motion of 25 May 2012." "The defendants may not indemnify themselves in respect of their liability to pay the costs the subject of order (1), or in respect of their own costs of the defendants' 25 May 2012 motion, out of any funds held as executors or as...