The Estate of Frances Kedesch Michell (No 2) [2020] NSWSC 1513

Supreme Court New South Wales

Medium Neutral Citation: The Estate of Frances Kedesch Michell (No 2) [2020] NSWSC 1513 Hearing dates: In Chambers and on the papers Date of orders: 29 October 2020 Decision date: 29 October 2020 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Orders that the Administrators pay the second Respondent's costs of the notice of motion filed on 26 June 2020, and the costs of the gross sum costs application, quantified on a gross lump sum basis under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) as $13,000, inclusive of GST. (2) Orders that the costs, calculated on the indemnity basis, of the second Respondent, of the passing of the accounts, the notice of motion filed on 26 June 2020, and the costs of the gross sum costs application, be quantified on a gross lump sum basis under s 98(4)(c) of the Civil Procedure Act 2005 (NSW), as $22,000, inclusive of GST. (3) Orders that the difference between the second Respondent's costs, calculated on the ordinary basis, and his costs calculated on the indemnity basis, being $9,000, be paid out of the estate of the deceased, and from the amount repaid to the estate ($37,133.69). (4) Orders, in the event that RMG Law & Associates is registered for GST and claims an input credit for any GST which it pays, then the amount of GST received should be refunded to the Administrators (or if the costs are paid by their solicitors, to those solicitors). (5) Makes no order as to the cost of the first Respondent, to the intent that he will bear his own costs, if any. Catchwords: SUCCESSION – COSTS – Costs of unsuccessful notice of motion to review Senior Deputy Registrar's moderation of legal costs and disbursements paid to Administrators' solicitors out of the deceased's estate in circumstances where order for costs, calculated on indemnity basis, of proceedings made – Gross sum costs order sought and not opposed other than as to quantum of costs sought – Whether global reduction in costs should be made – Usual practice of court to apply discount to lump sum costs orders –Determination of how costs not recovered should be paid and whether other beneficiary, who did not participate in the hearings, and who will benefit by the orders made should contribute to costs to be borne by the party who defended the Administrators' application and who sought the gross sum costs order – Principle of equity that he who derives the advantage ought to sustain the burden applicable – General principles of justice applied Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 98 Goods and Services Tax Ruling 2001/4. Legal Profession Uniform Law 2014 (NSW), ss 181, 182 Uniform Civil Procedure Rules 2005 (NSW), rr 42.7, 49.19 Cases Cited: Andy Vuong Duc Pham v Enterprise ICT Pty Ltd [2020] NSWSC 1089 Baychek v Baychek [2010] NSWSC 987 Bechara v Bates [2016] NSWCA 294 Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863 Bonner v Tottenham & Edmonton Permanent Investment Building Society [1899] 1 QB 161 Coshott v Parker (No 3) [2015] NSWSC 1195 Day v Perpetual Trustee (Supreme Court (NSW), Macready M, 3 August 2001, unrep) Guha v Guha [2020] NSWSC 1337 Hamod v New South Wales [2011] NSWCA 375 Hancock v Rinehart (Lump sum costs) [2015] NSWSC 164 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Harvey v Barton (No. 4) [2015] NSWSC 809 Idoport Pty Ltd v National Australia Bank Ltd In the matter of Optimisation Australia Pty Ltd (Costs) National Australia Bank Limited v Sayed [2020] NSWSC 1316 Re Beverage Freight Services Pty Ltd [2020] NSWSC 797 Re Estate Ford; Application for Executor's Commission [2016] NSWSC 6 Re Palladium Consulting Pty Ltd [2013] NSWSC 92 Russo v Russo (No 4) [2016] NSWSC 1133 Starr-Diamond v Diamond (No 4) [2013] NSWSC 811 Stoddart (NSW) Pty Ltd v Kellyville Building Pty Ltd [2019] NSWSC 1480 Stojanovski v Stojovski [2016] NSWSC 976 The Estate of Frances Kedesch Michell [2020] NSWSC 1300 Wentworth v Wentworth (Court of Appeal (NSW), Clarke JA, 21 February 1996, unrep) Texts Cited: G E Dal Pont, Law of Costs, (3rd ed, 2013, LexisNexis) Guideline For Costs Payable Between Parties Under Court Orders (16 March 2019, Supreme Court of New South Wales) Category: Costs Parties: Martha Pietor and Benjamin Pietor (first and second Applicants) Robert Christie (first Respondent) Sasha Freeman (second Respondent) Representation: Solicitors: Piper Alderman (first and second Applicants) RMG Law & Associates (second Respondent) File Number(s): 2017/337686