Miller as executor of the estate of Detlef John Kirsten v Kirsten (No 2) [2023] FCA 1034

Federal Court of Australia

Miller as executor of the estate of Detlef John Kirsten v Kirsten (No 2) [2023] FCA 1034 File number(s): SAD 183 of 2020

Judgment of: O'SULLIVAN J

Date of judgment: 29 August 2023

Catchwords: COSTS – dispute over ownership and registration of shares in the fifth defendant – declarations sought – where the dispute resolved shortly before trial – where the only remaining issue was an application by the plaintiff for costs – whether the first defendant acted reasonably in defending the proceedings – where the plaintiff was almost certain to be successful in her application – where the first defendant's unreasonable actions have put the plaintiff to unnecessary expense – first defendant to pay 40% of the plaintiff's costs of and incidental to the proceedings on a party-party basis

Legislation: Corporations Act 2001 (Cth), ss 259A, 259B, 1071F(2), 1072A(2)(a)(i), 1072G Administration and Probate Act 1919 (SA), ss 43(1)-(3), 44, 44(1) & (2), 121A, 121A(1)

Cases cited: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Hamilton v JJR Investment Holdings Pty Ltd and Ors [2023] SASC 40 In The Estate of Kirsten (deceased) [2018] SASCA (PROB-19-003379), unpublished Nicholls v Michael Wilson & Partners (No 2) [2013] NSWCA 141 Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84; (2018) 97 NSWLR 681 ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548 Re-Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622