Du Maurier v Wechsler No 3 [2012] NSWSC 372

Supreme Court New South Wales

Medium Neutral Citation: Du Maurier v Wechsler No 3 [2012] NSWSC 372 Hearing dates: Not applicable Decision date: 20 April 2012 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: I order that each party bear his and her own costs and, in the case of the plaintiff, without recourse to the estate of the deceased. Category: Costs Parties: Michael Du Maurier (plaintiff) Katie Wechsler (defendant) Representation: Mr L Ellison SC (plaintiff) Mr D Smallbone (defendant) Gadens Lawyers (plaintiff) Hunt & Hunt (defendant) File Number(s): 2011/266500

Judgment ON COSTS 1It is necessary to address the costs' orders which should follow from the two judgments which I have delivered in this matter. On 1 March 2012 I delivered a judgment on the defendant's application for provision of material to the defendant so that the defendant could address the application for judicial advice. That was reported at [2012] NSWSC 138. As a result of that application I ordered that one document should be produced but otherwise I dismissed the substance of the defendant's claim. 2My final judgment refusing the plaintiff's application for judicial advice was delivered on 20 March 2012 and is reported at [2012] NSWSC 240. 3The plaintiff seeks an order that the plaintiff's costs on the indemnity basis be paid out of the estate of the deceased with no order as to the costs of the defendant with the intention that she bears her own costs. In the alternative the plaintiff seeks an order that each party bear their own costs and, in the case of the plaintiff, without recourse to the estate of the deceased. 4The defendant seeks that the plaintiff pay the defendant's costs of the proceedings and that the plaintiff not be entitled to indemnity from the assets of the Estate of the late Gisela Fiala the deceased. 5Normally costs follow the event and in this case on the application for the supply of documents the plaintiff was substantially successful. In respect of the application for advice the plaintiff's application was dismissed. 6Under Uniform Civil Procedure Rules Part 42 Rule 42.25 the following provision appears. "(1) Subject to subrule (2), a person who is or has been a party to any proceedings in the capacity of trustee or mortgagee is entitled to be paid his or her costs in the proceedings, in so far as they are not paid by any other person, out of the fund held by the trustee or out of the mortgaged property, as the case maybe. (2) The court may order that the person's costs not be so paid if: (a)the trustee or mortgagee has acted unreasonably, or (b)in the case of a trustee, the trustee has in substance acted for his or her own benefit rather than for the benefit of the fund." 7There is no suggestion that the plaintiff acted unreasonably in making the application and in a sense he has acted for his own benefit in that he wished to be protected for costs at an early stage. However, this is not a case where the plaintiff is a beneficiary of the deceased's estate and he will have to fund his own costs. As is apparent from the judgments the beneficiaries are the defendant to the proceedings and the plaintiff's wife. 8I note that the arguments on the interlocutory application, which was substantially won by the plaintiff, took about the same amount of time as the arguments on the hearing for judicial advice. 9In the circumstances I think the appropriate order is that there be no order as to the costs of the parties with the intent that each party bear his and her own costs and, in the case of the plaintiff, without recourse to the estate of the deceased and I so order.