Rattigan v Hanly [2020] NSWSC 1722

Supreme Court New South Wales

Medium Neutral Citation: Rattigan v Hanly [2020] NSWSC 1722 Hearing dates: 18 November 2020 Date of orders: 2 December 2020 Decision date: 02 December 2020 Jurisdiction: Equity Before: Hallen J Decision: The Court, in respect of the amended notice of motion filed 15 October 2020: (1) Orders that, within 35 days of the making of these orders, the respondents, or either of them, reimburse the estate of the deceased, the amount of $230,000, which amount is to be paid into Court, pending the determination of the substantive proceedings, or any appeal therefrom, whichever is later. (2) Orders the respondents to pay the applicant's costs of the notice of motion. Catchwords: SUCCESSION – Executors and administrators – Proceedings brought against executor alleging maladministration of deceased's estate – Whether substantive proceeding is hostile litigation – Where substantive proceeding not yet determined and no costs order has been made in favour of the executor – No Beddoe order and no application for pre-emptive costs order sought by executor – Where no consent of beneficiaries sought or given for deduction of executor's costs – Executor deducting costs and disbursements out of the estate – Plaintiff on behalf of the estate seeks order for repayment of legal costs deducted – Whether the executor, or his solicitor, required to repay to the estate the amounts taken out of the estate for legal costs of the substantive proceedings Legislation Cited: Corporations Act 2001 (Cth), ss 180, 181 Probate and Administration Act 1898 (NSW), ss 84, 85 Supreme Court Act 1970 (NSW), s 66 Supreme Court Rules 1970 (NSW), Pt 78 r 94 Uniform Civil Procedure Rules 2005 (NSW), rr 54.1, 54.3 Cases Cited: Alsop Wilkinson (a firm) v Neary [1996] 1 WLR 1220 Application of Uncle's Joint Pty Ltd (2014) 12 ASTLR 487; [2014] NSWSC 321 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 BE Australia WD Pty Ltd (subject to a Deed of Company Arrangement) v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414 Blake v Norris (1990) 20 NSWLR 300 In Re Beddoe; Downes v Cottam [1893] 1 Ch 547 In the matter of Bevillesta Pty Limited [2011] NSWSC 1378 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623; (1985) 9 ACLR 926 Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13 National Trustees Executors and Agency Company of Australasia Limited v Barnes (1941) 64 CLR 268; [1941] HCA 3 Northey v Juul [2014] NSWSC 464 O'Brien v McCormick [2005] NSWSC 619 Palmer v Ayres; Ferguson v Ayres (2017) 259 CLR 478; [2017] HCA 5 Re Estate Schwartz, Deceased; Application of Gellert; Gellert v Bentwood and Schwartz [2015] NSWSC 1484 Schmidt v Rosewood Trust Ltd [2003] 2 AC 709; [2003] UKPC 26 Stamoulos v Constantinidis; Constantinidis v Constantinidis [2017] NSWSC 1808 The Estate of Frances Kedesch Michell [2020] NSWSC 1300 The Estate of Maureen Laila Huber, of Cobram VIC; The Estate of Dolf Paul Huber [2020] NSWSC 1539 The Estate of Wendy Gwynne Price; Lanigan v Price (No. 2) [2020] NSWSC 1518 Wishart v Castlecroft Securities Ltd 2010 SC 16; [2009] CSIH 65 Texts Cited: John S James (ed), Stroud's Judicial Dictionary of Words and Phrases (4th ed, 1972, Sweet & Maxwell) Category: Principal judgment Parties: Janice Merle Rattigan (Applicant/Plaintiff)