Supreme Court New South Wales Medium Neutral Citation: McCredie v Batson (No. 2) [2021] NSWSC 78 Hearing dates: 11 February 2021 Date of orders: 11 February 2021 Decision date: 11 February 2021 Jurisdiction: Equity Before: Slattery J Decision: The costs of the parties in respect of the issues determined in the judgment of 24 December 2020 will be paid out of the estate of the late Betty Batson and within that estate the burden of those costs will be borne equally by all the beneficiaries other than Mr David Jasper-Batson. Catchwords: COSTS – estate litigation – contest between executors as to who should bear costs – both the plaintiff and the defendant fail in their claims for the other to pay costs, as neither party was wholly successful – questions as to whether there were reasonable grounds for the litigation and whether the litigation was conducted bona fide – costs of the proceedings to be made out of the estate. Cases Cited: Blendell v Byrne & Ors; the Estate of Noeline Joan Blendell (No 2) [2019] NSWSC 798 Luke v South Kensington Hotel Company (1879) 11 Ch D 121 McCredie v Batson [2020] NSWSC 1913 Re Mayo [1943] Ch 302 Texts Cited: W.R. Miller, Probate Practice (Maxwell: 1900 Ed) Category: Costs Parties: Plaintiff: Jenise McCredie Defendant: Karen Batson Representation: Counsel: Plaintiff: A. Crossland Solicitors: Plaintiff: R. Lewis, Elder Law Defendant: T. Orlizki, Kent Attorneys File Number(s): 2020/359014 Publication restriction: No ex-tempore Judgment 1. The Court gave judgment in these proceedings on 24 December 2020: McCredie v Batson [2020] NSWSC 1913. 2. In that judgment the Court intervened in a dispute between two executors of an estate (daughters of the deceased) who could not agree with the arrangements preceding the cremation of their mother's body. The Court exercised a well-known jurisdiction where executors cannot agree and the estate needs to be administered on an urgent basis: the Court fulfilled the role of the executors and made the necessary decisions in the administration of the estate. 3. This judgment should be read with the Court's previous judgment. Events, matters and persons are referred to in both judgments in the same way. 4. The parties have each put submissions that the other party should pay the costs of the proceedings, and, in the alternative, that the costs of the proceedings be paid out of the estate. Each party has asserted in primary written submissions that she has been substantially successful and the other party has not. Each claimed she was entitled to an order for costs. They both advanced different reasons for taking that position. 5. After this costs hearing was called on and before oral submissions took place, the Court outlined a possible intermediate costs outcome in which all the costs might be borne by the estate, but principally by the shares of the estate which would devolve upon the plaintiff and the defendant. 6. The plaintiff contends that the defendant should pay her costs because the plaintiff's final position was that there should be a small private family funeral, and that is what the Court ultimately ordered. The plaintiff says she wanted White Lady Funerals to conduct the funeral and the defendant wanted Simplicity Funerals if there was to be a funeral, and it was White Lady Funerals that the Court selected. Consistent with the plaintiff's view of the conduct of a small family funeral, the Court ordered that at least a neutral person give a eulogy at the funeral. The plaintiff says that she was substantially successful in that respect as well. 7. The defendant says, looking at the wider picture, the correspondence and the Summons show that the plaintiff in short wanted relief allowing the plaintiff to instruct the defendant on how the funeral was to be conducted. The defendant points to somewhat terse correspondence written by the plaintiff to the defendant and the defendant's solicitors demanding answers by particular dates and indicating what the plaintiff wanted as if she were giving instructions to the defendant. 8. The defendant also points to the fact that a considerable part of the proceedings was concerned with the competence of the deceased when she made a statutory declaration that said she did not want a funeral, a matter which was covered in the Court's first judgment at [18]. The defendant says she was successful in her contention that the deceased was competent when making the statutory declaration. 9. The plaintiff in reply says that the deceased's competence was not a main issue in the proceedings. She also says that it was clear that the full relief sought in the Summons for the plaintiff to instruct the defendant what to do was not being pressed beyond day one of the hearing. The plaintiff says in reply that the Court should look to the substance of the relief granted which is closer to the plaintiff's case than the defendant's. 10. This is estate litigation and the principles that apply to the awarding of costs in such litigation are stated in the decision of Hallen J in Blendell v Byrne & Ors; the Estate of Noeline Joan Blendell (No 2) [2019] NSWSC 798 ("Blendell"). Hallen J in Blendell cites (at [54]) includes the following passage from W.R. Miller's Probate Practice (Maxwell: 1900 Ed.) at 438-439: "Two questions are to be considered with reference to an application for costs of the unsuccessful party: (1) Was there reasonable ground for litigation? (2) Was it conducted bona fide? Where both these questions can be answered in the affirmative it is the usual practice of the Court, without having regard to the amount or the ownership of the property, to order the general costs to be paid out of the personal estate." 1. As Blendell explains, the principles there stated are still the law and they guide the Court in what should be done in this case. 2. Although this litigation was conducted with a level of persistent acrimony between two sisters that is difficult to comprehend to an objective observer, in its present task the Court nevertheless needs to assess the parties' conduct by reference to what the parties thought at the time and whether they had reasonable grounds for taking the positions they did. 3. The Court must first ask the question: were there reasonable grounds for the litigation? In this case both sides were able to point to proven evidence that justified the positions they took. The defendant could point to the statutory declaration. The plaintiff could point to the statements that were made after the deceased's husband's funeral. The Court found that the statutory declaration was made when the deceased was competent and that those statements were made after the deceased's husband's funeral. It seems to the Court that it was not unreasonable for either side, despite the acrimony, to base their positions on that evidence. In that sense, in the Court's view, there were reasonable grounds for the litigation. 4. The second question is: was the litigation conducted bona fide? The underlying evidence that each side said was the basis for her position shows each sister was bona fide in seeking to advance what she believed that the deceased wanted. In the Court's view, they were not seeking to conduct the litigation merely to harass the other, or for some other extraneous or other improper purpose, but for the bona fide purpose of giving effect to the wishes of the deceased. 5. It takes two to make an agreement and it is difficult for the Court to blame one or other sisters that consensus could not be reached in this case, so that the executors could act together as the law requires them to do: Luke v South Kensington Hotel Company (1879) 11 Ch D 121 and Re Mayo [1943] Ch 302. 6. In the Court's view the appropriate course in this case is not to make an order for costs in favour of one party against the other. I will not make an order for costs in favour of the plaintiff against the defendant, in part because the way the case was formulated for the plaintiff in the Summons and in the lead up correspondence was seeking a form of relief that was not appropriate and was an aggravating cause of the litigation. And the Court's choice of White Lady Funerals was for reasons other than those advanced by the plaintiff. And the Court will not make a costs order in favour of the defendant because the overall outcome of the case was more like that for which the plaintiff ultimately contended. 7. Because the applicable principles have been satisfied, this is an appropriate case for the Court to make an order for costs out of the estate and the Court will do so. 8. The final question that arises is: how should the burden of those costs be borne within the estate? Of the five children of the deceased, four of them took part in these proceedings and took sides: the plaintiff, the defendant, Peter Jasper-Batson and Marilyn Jasper-Batson. The only sibling who took no part of the proceedings was David. It seems to the Court that David's share of the estate should be exonerated from bearing any costs in the proceedings because he did not become involved. 9. The order of the Court therefore will be that the costs of the parties to these proceedings on the issues determined in the Court's judgment on 24 December 2020 will be paid out of the estate, and within the estate the burden of those costs will be borne by all the beneficiaries other than Mr David Jasper-Batson. 10. This does not conclude the proceedings. The plaintiff seeks alternative relief in relation to the administration by the defendant of a power of attorney during the deceased's lifetime. The plaintiff indicates that it can file a statement of claim to plead that case, and that is what should happen. Orders and Directions 1. The Court will make the following orders: 1. The costs of the parties to these proceedings in respect of the issues determined in the judgment of 24 December 2020 will be paid out of the estate of the late Betty Batson and within the estate the burden of those costs will be borne equally by all the beneficiaries other than Mr David Jasper-Batson. 2. Order that on or before 11 March 2021, the plaintiff file and serve a statement of claim in respect of the balance of the proceedings, including in respect of any further relief not identified in the Summons. 3. Order that on or before 8 April 2021, the defendant file and serve any defence to the plaintiff's statement of claim. 4. Matter to be listed in the online court before the Equity Registrar on 15 April 2021. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2021