FOORD v. BROCK & ORS [2005] NSWCA 156

New South Wales Court of Appeal

CITATION: FOORD v. BROCK & ORS [2005] NSWCA 156

HEARING DATE(S): 05 & 06/05/2005

JUDGMENT DATE: 31 August 2005

JUDGMENT OF: Giles JA at 1; Bryson JA at 2-85; Brownie AJA at 86

DECISION: Order: 1. Appeal allowed with costs; 2. Set aside Orders 1, 2, 3 and 4 made by Master McLaughlin on 2 December 2003; 3. In lieu thereof order; (a) the remuneration and the costs of Kevin Richard Shirlaw including legal costs be paid or retained by him out of the assets of the testatrix; (b) the plaintiffs cross-defendants are to pay the defendant cross-claimant's costs of the proceedings in the Equity Division; 4. The respondents if otherwise qualified are to have a certificate under the Suitors' Fund Act 1951.

CATCHWORDS: COSTS - Probate proceedings - appeal from Master's orders on costs of Probate proceedings and remuneration and expenses of Administrator (professional Liquidator) appointed by consent of parties to resolve dispute about entitlement to Probate - Consideration of powers of the Court to make orders as to Administrator's remuneration - Master's orders set aside and discretion exercised again by Court of Appeal - majority decision on re-exercise.

Criminal Justice Act 1988 (U.K) , s.77 Legal Profession Act 1987 LEGISLATION CITED: Supreme Court Act 1970, s.76(1) and (2) Supreme Court Act 1981 (U.K), s.51 Wills Probate and Administration Act 1898. s.75(1)

Commissioner for Railways v Small (1938) 38 SR NSW 564 In Re Andrew [1999] 1WLR 1236 In Re Skinner, Cooper v Skinner [1904] 1 Ch 289 (Farwell J) CASES CITED: NSW Commissioner of Police v Tuxford (2002 NSWCA 139) Shirlaw v Taylor (1991) 31 FCR 222 Springett v Dashwood (1860) 2 Gifford 521, 66ER 218