P Barnes (as executor of the estate of the late Lawrence Barnes) v D Barnes (No 4) [2023] NSWSC 746

Supreme Court New South Wales

Medium Neutral Citation: P Barnes (as executor of the estate of the late Lawrence Barnes) v D Barnes (No 4) [2023] NSWSC 746 Hearing dates: 24 April 2023 Date of orders: 3 July 2023 Decision date: 03 July 2023 Jurisdiction: Common Law Before: Schmidt AJ Decision: 1. Judgment for the plaintiff. 2. That a writ of possession be issued for the land comprised in Lot xxx in DPxxxxx being the land situated at and known as xxxxxx Road, Nimbin in the State of New South Wales. 3. That enforcement of the writ of possession be stayed for 28 days from the date of these orders, to permit the defendant/cross-claimant time to vacate the property. 4. That the defendant's cross-claim be dismissed. 5. That the defendant/cross-claimant pay the costs of the plaintiff/cross-defendant: (a) on the ordinary basis until 23 February 2023 and thereafter (b) on the indemnity basis. 6. That the costs in order 5 is specified as a gross sum of $103,284.57 pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) and that it shall be paid as a fixed sum from the proceeds of any distribution the defendant may receive as a beneficiary of the estate of the late Lawrence Phillip Barnes. 7. The balance of any costs of the plaintiff/cross-defendant be paid from the estate of the late Lawrence Phillip Barnes on the indemnity basis. Catchwords: COSTS — whether indemnity costs order should be made against defendant — defendant's failure to complete sale after service of notice to complete did not establish necessary delinquency in the litigation — refusal of Calderbank offer — defendant advanced case with no real prospect of success — indemnity costs order to be made COSTS — whether a lump sum costs order to be made payable out of the defendant's share of estate — order just in circumstances — consideration of Civil Procedure Act 2005 (NSW), ss 60, 98 — lump sum order to be made SUCCESSION — Executors and administrators — order for possession of property — order sought by executor against co-executor — where writ of possession issued — whether defendant to be given further 90 days to vacate property — refused Legislation Cited: Civil Procedure Act 2005 (NSW), ss 60, 98 Uniform Civil Procedure Rules 2005 (NSW), r 42.5 Cases Cited: In the matter of Inavas Pty Ltd (Costs) [2017] NSWSC 1640 Mead v Watson [2005] NSWCA 133 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 P Barnes (as executor of the estate of the late Lawrence Barnes) v D Barnes (No 3) [2023] NSWSC 491 Tarabay v Fifty Property Investments Pty Ltd [2009] NSWSC 951 Category: Costs Parties: Phillip Barnes (as executor of the estate of the late Lawrence Barnes) (Plaintiff) Darren Barnes (Defendant) Representation: Counsel: Ms J Treherne (Plaintiff) Mr D Barnes (Defendant) (self-represented)