The Estate of Nelly Mary Aston; The Estate of Riley Davis Aston [2024] NSWSC 1346

Supreme Court New South Wales

Medium Neutral Citation: The Estate of Nelly Mary Aston; The Estate of Riley Davis Aston [2024] NSWSC 1346 Hearing dates: On the papers Date of orders: 24 October 2024 Decision date: 24 October 2024 Jurisdiction: Equity - Probate List Before: Slattery J Decision: Order that the applicant pay the respondent's legal costs of the June 2023 Motion on the indemnity basis up to 29 February 2024 and on the ordinary basis thereafter Directions made for the resolution of the supplementary issues Catchwords: COSTS – Party/Party – General rule that costs follow the event – Offers of compromise/Calderbank offers – indemnity costs – a beneficiary of a deceased estate (the first estate) filed a motion in December 2017 seeking the passing of estate accounts after the death of the original executor of the first estate – orders made in February 2018 for the filing and passing of estate accounts in the estate against its first executor – estate accounts not filed by the first executor of the first estate – the first executor of the first estate dies in 2020 – the second executor of first estate (being the executor of the first executor's estate) does not file and pass accounts in the first estate – in June 2023 the beneficiary of the first estate filed a motion, as applicant, in the estate of the first executor (second estate) seeking the filing and passing of accounts in the first estate – at a probate directions hearing, the Court determines that the real issue in dispute is not one of the passing of accounts but as to the identification of the assets and liabilities of the first estate and orders a final hearing on that issue – the contentions of the beneficiary of the first estate as to the assets of the estate fails – what order for costs should be made – whether the parties have disproportionately incurred costs – whether the applicant have unreasonably failed to follow the advice of the Registrar in probate as to the correct procedure for the conduct of the present dispute – whether the beneficiary has conducted herself so unreasonably as to warrant an order for indemnity costs against her – whether a Calderbank offer has been made – what is the appropriate exercise of the costs discretion. Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(4)(c) Trustee Act 1925 (NSW), s 59 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1, 42.2, 42.25 Cases Cited: Anderson v Canaccord Genuity Financial Ltd (No 2) [2022] NSWSC 649 Arnott v Choy (No. 2) [2010] NSWCA 285 Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff (No 2) (2009) 15 ANZZ Insurance Cases 61-795; [2009] NSWCA 12 Benette v Cohen (No. 2) [2009] NSWCA 162 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170 Evans Shire Council v Richardson (No 2) [2006] NSWCA 6 Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) (2005) 13 VR 435; [2005] VSCA 298 In the Matter of Indoor Climate Technologies Pty Ltd [2019] NSWSC 356 King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No. 2) [2009] NSWSC 8204 Maitland Hospital v Fisher (No. 2) (1992) 27 NSWLR 721 Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344 Perpetual Trustee Co Ltd v Banker [1999] NSWCA 244 Public Trustee v Annous; Re Taleh (unreported, NSWSC PD, Powell J, 31 July 1992) Re Estate of Grounds [2005] NSWSC 1311 Re the Estate of Hodges (1988) 14 NSWLR 698 The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] 67 NSWLR 706; [2006] NSWCA 120 The Estate of Nelly Mary Aston; The Estate of Riley Davis Aston [2024] NSWSC 804 Walker v Harwood [2017] NSWCA 228 Category: Costs Parties: 2015/381877 Anne Krelle (Applicant) Riley Aston (Respondent)