McCusker v Rutter [2010] NSWCA 318

New South Wales Court of Appeal

CITATION: McCusker v Rutter [2010] NSWCA 318

HEARING DATE(S): 28 September 2010

JUDGMENT DATE: 26 November 2010

JUDGMENT OF: Campbell JA at [1]; Young JA at [4]; Handley AJA at [54]

(1) Appeal allowed. (2) The respondents David Andrew Rutter and Jane Elizabeth Rutter to pay jointly and severally the appellant's and the third respondent's costs of the appeal. (3) Set aside the costs orders made by McLaughlin AsJ. (4) In lieu order that David Andrew Rutter and Jane Elizabeth Rutter jointly and severally pay 85% of the appellant's costs of the proceedings in the Equity Division. DECISION: (5) Order that the appellant receive out of the estate her costs incurred in the proceedings in the Equity Division brought by her daughter Flossiy on an indemnity basis. (6) Order that the appellant receive out of the estate on an indemnity basis her costs incurred in defending the proceedings brought by David Andrew Rutter and Jane Elizabeth Rutter to the extent to which those costs are not recovered from those parties. (7) The third respondent administrator may retain out of the estate his costs of the appeal to the extent to which they are not recovered from the first and second respondents. (8) The respondents David Andrew Rutter and Jane Elizabeth Rutter to have certificates under the Suitor's Fund Act. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]