NSW Caselaw
New South Wales Supreme Court
CITATION : Cumming v Sands [2001] NSWSC 599 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 5003/98 HEARING DATE(S) : 6 July 2001 JUDGMENT DATE : 18 July 2001
Delys Louise Cumming (P) PARTIES : Margaret Lesley Sands (D1 & XC) Peter Elliott Brand (D2 & 2XD) Robert Bruce Gordon (D2 & 3XD) JUDGMENT OF : Hamilton J
J M Atkin (P) COUNSEL : S Hughes (D1) No representation (D2, 2XD & 3XD) Walters (P) SOLICITORS : Heidtman & Co (D1) Submitting appearance (D2, 2XD & 3XD) CATCHWORDS : PROCEDURE [565] - Costs - General rule - Costs out of a fund - When costs allowed out of fund - Benefit of estate - Defendant defending proceedings for own benefit rather than benefit of estate. LEGISLATION CITED : Supreme Court Rules 1970 Part 52A r 42 Brown v McEncroe (1890) 11 NSWR Eq 143 Cumming v Sands [2001] NSWSC 2 CASES CITED : Cumming v Sands [2001] NSWSC 507 Drummond v Drummond [1999] NSWSC 921 Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (1993) 438 - 440 DECISION : Executor ought not have her own costs of the proceedings out of the estate.
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
HAMILTON J
WEDNESDAY, 18 JULY 2001
5003/98 DELYS LOUISE CUMMING v MARGARET LESLIE SANDS & ORS
JUDGMENT
1 In this matter I have already delivered two judgments: Cumming v Sands [2001] NSWSC 2 ("my first judgment") and Cumming v Sands [2001] NSWSC 507 ("my second judgment"). The matter has been back before me for debate concerning the short minutes. 2 In my second judgment [12] I determined that the first defendant should be ordered to pay out of her personal funds the plaintiff's costs of the proceedings on the basis that the case had been conducted in reality by the first defendant in her own personal interest. I did not deal with the separate but related question of whether the first defendant was entitled to recoup her own costs of these proceedings out of her mother's estate. Mr Atkin, of counsel for the plaintiff, has pointed out that as a trustee she would be entitled to do so, unless it is otherwise ordered, under the provisions of the Part 52A r 42 of the Supreme Court Rules 1970 ("the SCR") which are as follows: "Trustee or mortgagee
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