Supreme Court New South Wales Medium Neutral Citation: Henry John Northey v Jennifer Frances Juul & Anor [2014] NSWSC 464 Hearing dates: 17 & 18 September 2013 Decision date: 28 April 2014 Jurisdiction: Equity Division Before: Slattery J Decision: See paragraph [204]. Catchwords: SUCCESSION - administration of estates - application for judicial advice - application for indemnity for executors' legal costs from the estate - deceased's daughter and son-in-law sub-divide and renovate her property before her death - deceased gives estate to her seven children in equal shares and appoints two of her children as her executors and trustees - proceedings brought in 2004 by one of the deceased's children against the executors/trustees for wilful default in their duties - executors/trustees fail substantially at first instance in 2005 and 2008 - executors/trustees successful on appeal in 2010 - disputes about the burden of the legal, administration and financial costs of the 2004 litigation. Legislation Cited: Civil Procedure Act ss 56, 98(4)(c) Real Property Act 1900 Trustee Act 1925, ss 5, 59(4), 63 Uniform Civil Procedure Rules r 42.25 Cases Cited: Armitage v Nurse [1988] Ch 241 Bovaird v Frost [2009] NSWSC 917 Bristowe v Needham (1847) 2 Ph 190 Commissioner of Stamp Duties v Buckle (1998) 192 CLR 226 Dawson v Clarke (1811) 34 ER 311 Dodds v Tuke (1884) 25 Ch D 617 Evans v Evans [1985] 3 All ER 289 Fitzwood Pty Limited v Unique Goal Pty Limited (In Liquidation) (2001) 188 ALR 566 Frost v Bovaird & Ors [2012] 203 FCR 95 Gatsios Holdings v Kritharas Holdings (In Liquidation) [2002] NSWCA 29 Harrison v Mills (1976) 1 NSWLR 42 Harrison v Schipp (No 2) (2002) 54 NSWLR 738 Hartigan Nominees Ltd v Rydge (1992) 29 NSWLR 405 Heid v Reliance Finance Corporation (1983) 154 CLR 326 In re Beddoe [1893] 1 Ch 547 In re Dunn [1904] 1 Ch 648 In re Grimthorpe (deceased) [1958] Ch 615 In Re Buckton; Buckton v Buckton [1907] 2 Ch 406 Juul v Northey [2010] NSWCA 211 Kemtron Industries Pty Limited v Commissioner of Stamp Duties (Qld) [1984] 1 Qd R 576 In re Llewellin; Llewellin v Williams (1887) 37 Ch D 317 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar (2008) 237 CLR 66 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 McDonald v Horn [1995] 1 All ER 961 Mead v Watson (as liquidator for Hypec Electronics (2005) 23 ACLC 718 Miller v Cameron (1936) 54 CLR 572 National Trustees Executors and Agency Company of Australasia Limited v Barnes (1941) 64 CLR 268 National Trustees Executors and Agency Co v Dwyer (1940) 63 CLR 1 Northey v Juul [2005] NSWSC 933 Northey v Juul [2008] NSWSC 275 Octavo Investments Pty Limited v Knight (1979) 144 CLR 360 Re Australian Pipeline Limited [2006] NSWSC 1316 Re Dallaway (Deceased) [1982] 3 All ER 118 Re Exchange Securities and Commodities Ltd (No. 2) (1985) BCLC 392 Re Jones; Christmas v Jones [1897] 2 Ch 190 Re March; March v Harris (1884) 27 Ch D 166 Re Spurling's Will Trusts [1966] 1 WLR 920 Stott v Milne (1884) 25 Ch D 710 Turner v Hancock (1882) 20 Ch D 303 Walter v Woodbridge (1878) 7 Ch D 504 Williams v Jones (1886) 34 Ch D 120 Category: Principal judgment Parties: Plaintiff/Respondent: Henry John Northey First Defendant: Jennifer Frances Juul Second Defendant: James Knight Northey Third Defendant: John Stewart Hunter Fourth Defendant: Richard Booker Representation: Counsel: Plaintiff/Respondent: Ms R. N. Winfield First Defendant: Mr R. Lovas Third & Fourth Defendant: Mr J.S. Drummond Solicitors: Plaintiff: Delwyn Bishop, Delwyn A. Bishop First Defendant: Robert Van Aalst, Murphy's Lawyers Third & Fourth Defendant: John Stewart Hunter, E. H. Tebbutt & Sons Lawyers File Number(s): 2004/184131 Publication restriction: No Judgment 1Betty Frances Northey died in December 2003. In the more than ten years since her death her children have been caught in a vortex of litigation about her estate. They have fought out their differences in several hearings in the Equity Division of this Court and in the Court of Appeal, eventually entering the High Court's special leave lists. All that litigation has been very costly. 2In two notices of motion now before the Court, one seeking judicial advice and the other seeking indemnity from the estate for legal costs, the parties to this unfortunate litigation now contest how each of them and the estate should bear the substantial legal, administration and financial costs they have incurred. A Sub-Division in Collaroy 3But first some background. Mrs Betty Northey became a widow in July 1996. She was then in her early eighties. After her husband's death she became the sole registered proprietor of the family home, a residence with tennis courts on a large block of land in the Sydney northern beaches suburb of Collaroy. 4She needed to plan her future accommodation and financial security. She turned to one of her seven children to discuss the alternatives available to her. She had the options: to sell the family home and move into a retirement village; or to stay and sub-divide the land, using the sale proceeds of the new lots to renovate and adapt the family home for her then circumstances. 5Mrs Northey's consideration of her options resulted in her entering into a deed in February 1997 with one of her children, Mrs Jennifer Frances Juul and her husband, Mr Ole Juul. The February 1997 deed between Mrs Northey and Mr and Mrs Juul provided that the Juuls would do all that was necessary to subdivide the property into five lots, including the house lot. In return for their subdivision efforts Mr and Mrs Juul would receive one of the four new lots created in the subdivision. 6The subdivision proceeded. Four new lots were created: lots 51, 52, 53 and 54. The original house property became lot 55 in the subdivision. 7Both lots 53 and 54 were sold to third parties in late 1998, early 1999. Mrs Northey received the sale proceeds of these two lots, in accordance with the February 1997 deed. 8Mrs Northey transferred lot 52 to the Juuls in February 1998, as the February 1997 deed had contemplated. After the transfer of lot 52 to the Juuls they built two townhouses on the lot. 9Mrs Northey sold lot 51 (the last of the newly created lots to be sold) not to a third party, but to a child of Mr and Mrs Juul, Gaetan Juul in January 2003. Lot 51 was valued for stamp duty purposes at $475,000. But Mr Gaetan Juul paid only $300,000 of the agreed consideration for the transfer. 10Once Mrs Northey had raised funds by subdividing and selling parts of the family home, the second part of her plan was to use the sale proceeds to renovate the house to better adapt it for her immediate needs. At an earlier stage in his life, Mr Ole Juul, had been a builder. Mrs Northey contracted with Mr Juul for reward for him to renovate the family home, as she required. He completed the renovations by April 2011. She paid Mr and Mrs Juul $515,000 for the building work. Throughout these renovations Mrs Northey was the owner/builder. But Mr Juul carried out the tasks of arranging the development application, engaging, supervising and paying sub-contractors, and procuring and paying for materials. He also did some of the building work himself. The Sub-Division leads to Litigation 11Mrs Northey continued to live in the family home after the renovations were completed in April 2001, until her death in December 2003. 12Although Mrs Northey gave her estate to her seven children in equal shares, some of the children perceived that Mrs Northey's dealings with Mr and Mrs Juul before her death required an account in relation to the assets of the estate before it was distributed on an equal basis. This was the general theme of the litigation that followed in 2004. 13Not all of the deceased's seven children were parties to the litigation. In birth order Mrs Northey's seven children are Henry John Northey, Elizabeth Siberteen Smith, Julia Hester Orofino, John Joseph Northey, Jennifer Frances Juul, James Knight Northey and Richard Northey. 14Mrs Northey appointed two of her younger children, Mrs Jennifer Juul and Mr James Northey, as the executors and trustees of her will (called throughout these reasons "the trustees"). Her eldest child, Mr Henry Northey, commenced proceedings in August 2004 against both trustees, as first and second defendants, seeking to bring them to account in various ways in respect of the administration of Mrs Northey's estate. Mr Henry Northey claimed that he sought through this litigation to benefit his siblings, Mrs Elizabeth Smith, Mrs Julia Orofino and Mr John Northey, who with him are the four eldest children. Mr Ole Juul was not a party to the litigation. The youngest child, Mr Richard Northey was neither a party to the litigation nor a person that Mr Henry Northey declared that he intended to benefit through his litigation. 15On 23 July 2008, after the trial at first instance, Mrs Juul and Mr James Northey retired as trustees of the estate and were replaced by Mr John Stewart Hunter and Mr Richard Booker, ("the Present Trustees"). They in turn were joined as the third and fourth defendants to Mr Henry Northey's litigation. 16Mr Henry Northey's litigation sought to have the trustees account for the receipt of the proceeds of sale of the various lots in the sub-division and for the conduct of the building works. This may at first seem an unusual claim against the trustees of Mrs Northey's estate: the sub-division and the renovations to the family home had been completed almost three years before Mrs Northey died. 17Mr Henry Northey made three main claims. The first related to lot 52. Mr Henry Northey alleged that the transfer of this lot, despite having been an inter-vivos transaction between Mrs Northey and Mr and Mrs Juul, was in fact the sale of a trust asset and that the trustees of her estate should account to the estate for their dealings with it. The trial judge found this claim was misconceived and dismissed it. 18The second claim related to lot 51. This was an inter-vivos transaction between Mrs Northey and her grandson Mr Gaetan Juul. The plaintiff, Mr Henry Northey, alleged that the trustees of Mrs Northey's estate should account for the sale of lot 51 at what was alleged to be an undervalue. The trial judge also dismissed this claim. 19The third claim related to the building contract between Mrs Northey and Mr Juul. As earlier indicated, Mrs Northey had paid Mr and Mrs Juul $515,000 for his renovations to the family home. Although this too was an inter-vivos transaction between Mrs Northey and Mr Juul, Mr Henry Northey contended he could maintain an action in respect of it against the deceased's trustees. Unlike the two earlier claims, this claim succeeded at trial. But on appeal the trial judge's decision was overturned and the building contract claim was dismissed. Procedural History of the Litigation 20The procedural history of this litigation is complex. Mr Henry Northey commenced his proceedings by Summons on 10 August 2004. The claims within his Summons were determined over the course of two principal hearings: the first on 29, 30 August and 1 September 2005 (known as "the wilful default hearing"); and, the second hearing over a further four days in 2007 (known as "the accounting hearing"). Both hearings took place before Macready AsJ. His Honour gave judgment after the wilful default hearing on 16 September 2005 ("the wilful default judgment"): Northey v Juul [2005] NSWSC 933. After the accounting hearing his Honour gave judgment on 1 April 2008 ("the accounting judgment"): Northey v Juul [2008] NSWSC 275. Both the wilful default judgment and the accounting judgment were the subject of appeal. Macready AsJ's procedural and substantive determinations in the wilful default and the accounting judgments are important foundations for the present disputes. 21In the wilful default judgment in September 2005, Macready AsJ dismissed as unmeritorious Mr Henry Northey's claim in respect of lots 51 and 52. But Macready AsJ found that the $515,000 Mrs Northey had paid to Mr and Mrs Juul to renovate her home was only paid "on account" of the Juul's actual expenditure on the renovations and was not payment of consideration under a fixed-price building agreement. Macready AsJ held that of the $515,000 paid to Mr and Mrs Juul a maximum of $370,839.62 was for their actual expenditure on the building work, so that no less than $144,160.38 was repayable to the estate. But his Honour also held that the trustees had not recovered this sum from Mr and Mrs Juul in circumstances constituting a wilful breach of trust. The trustees should account for certain monies that they should have recovered but did not recover from them. The amount found that should have been recovered was the difference between the value of the building work done and the $515,000 actually paid to Mr and Mrs Juul. Macready AsJ found that in failing to recover this difference the trustees wilfully defaulted in their executorial duties or duties as trustees. But he did not find any dishonesty or male fides against either Mrs Juul or Mr James Northey. On 27 September 2005 Macready AsJ made orders for the filing of evidence for an accounting hearing in respect of the recovery of at least $144,160.38 of the $515,000. 22But there was only a slender procedural foundation for Mr Henry Northey's success on his wilful default allegations against the trustees. The relief, which Macready AsJ granted in the wilful default judgment was described in a proposed amendment to Mr Henry Northey's Summons. At the conclusion of the wilful default hearing, just before the parties addressed the Court in closing submissions, Macready AsJ granted the following leave to the plaintiff to amend his Summons: "I will give leave to file the Amended Summons and orders in accordance with the document handed up on 29 August 2005 subject to an amendment to delete order 6 and for the purposes of identification I will sign and date it today." 23But when his Honour reserved judgment on 1 September 2005, he did not make any further orders about the amendments. And the plaintiff, Mr Henry Northey, never exercised the leave granted to him to amend the Summons. These matters were one basis for the Court of Appeal later to overturn Macready AsJ's wilful default judgment. 24Despite the fragile procedural basis for the accounting hearing, it went ahead in August 2007. Between the wilful default hearing and the accounting hearing Mr James Northey changed his allegiances. Mr Henry Northey persuaded him to turn against Mrs Juul and join the plaintiffs. This caused consequential rearrangement in the parties' representation: Mr James Northey and Mrs Juul's joint legal representatives had to retire from the proceedings and each of the defendants, Mrs Juul and Mr James Northey, had to retain new separate lawyers. 25The August 2007 accounting hearing developed into a detailed contest with expert evidence about the work Mr Juul had done at Mrs Northey's family home. After Macready AsJ gave the accounting judgment on 1 April 2008 his Honour determined several consequential issues. Between April and July 2008 he: (1) dealt with submissions on the terms of the orders to give effect to his judgment, including arguments about interest and costs; (2) determined Mr James Northey's notice of motion for leave to file a cross-claim against Mrs Juul; and, (3) determined Mrs Juul's notice of motion that she and Mr James Northey be replaced as trustees. 26The dispute widened in June 2008. Mr Henry Northey lodged a caveat under the Real Property Act 1900 against the title of Mrs Juul's home on 16 June 2008. Aspects of the merits and costs of that caveat are the subject of present contest. 27Macready AsJ made final orders at first instance on 23 July 2008. His orders gave effect to the accounting judgment (entering judgment against Mrs Juul and Mr James Northey for $165,493.72 together with interest of $102,203.18) but reducing this liability by $137,348.45 on account of just allowances for work done by Mr Juul. The orders allocated the liabilities for costs among the parties, and granted leave to Mr James Northey to file a cross-claim seeking orders that Mr and Mrs Juul indemnify him for his then adjudged liability to the estate. The 23 July 2008 orders also replaced Mrs Juul and Mr James Northey as trustees with the present trustees, Mr John Hunter and Mr Richard Booker ("the present trustees") who have administered Mrs Northey's estate continuously since 23 July 2008. 28Macready AsJ's allocation of costs for the wilful default and accounting hearings reflected his findings. His Honour gave reasons for his costs awards in a third judgment, on 13 June 2008: ("the costs judgment"). The resulting orders were included in the final orders made on 23 July 2008. Macready AsJ allowed Mrs Juul and Mr James Northey to be indemnified out of the estate for one half of their costs of the wilful default hearing. This reflected their partial success at the wilful default hearing. But Macready AsJ directed that such indemnity should not be exercised "until such times as the amounts payable by the executors are paid back to the estate": the costs judgment, at [12]. 29The trustees were ordered to pay Mr Henry Northey's costs of the accounting hearing and their own costs of that hearing. Macready AsJ reasoned that "as these costs arose out of the wilful default and a failure to account that they should not be entitled to an indemnity out of the estate of the deceased in respect of these amounts": the costs judgment, at [13]. 30The estate paid on the trustee basis all parties' costs of replacing the trustees with the present trustees on 23 July 2008. Mr Henry Northey had filed a motion seeking orders to this effect on 7 April 2008. Mrs Juul had filed a motion to similar effect on 7 July 2008. The outcome of both motions improved the administration of the estate. 31Mrs Juul appealed. Her notice of appeal filed on 8 October 2008 challenged the result of both the wilful default judgment and the accounting judgment, and their costs consequences reflected in the costs judgment. On 4 November 2008, Mr Henry Northey filed a notice of cross-appeal, challenging Macready AsJ's decisions dismissing his claims in respect of lots 51 and 52. 32The Court of Appeal (McColl, Basten and Campbell JJA) heard the appeal and cross-appeal on 11 November 2009 and gave judgment on 26 August 2010: Juul v Northey [2010] NSWCA 211. The Court of Appeal concluded: (1) Mr Henry Northey's proceedings were misconceived (at [200]); (2) Mr Henry Northey had never exercised the leave to amend his Summons to include a prayer for an accounting on the basis of wilful default and therefore the wilful default allegations were never properly pleaded and the findings at first instance went beyond the case notified to Mrs Juul (at [203], [206 and [209]); (3) the plaintiffs' substantive allegation (on the unamended pleadings) remained one that Mrs Juul and Mr Juul had taken $515,000 from Mrs Northey without her agreement, an allegation which was not made out on the evidence and was rejected (at [234]); so (4) Mr Henry Northey failed on appeal because Macready AsJ had considered issues which were not part of Mr Henry Northey's pleaded case and because his Honour's findings that survived appeal did not support such a case. 33In the result the Court of Appeal upheld Mrs Juul's appeal and dismissed Mr Henry Northey's cross-appeal, and awarded Mrs Juul party/party costs on the appeal and cross-appeal and at first instance. But the Court of Appeal did not dismiss Mr Henry Northey's claim solely on the basis of the failure to file an amended Summons. The present reasons necessarily involve a degree of simplification of the factual and procedural history and the issues litigated in the Court of Appeal. These matters are fully set out in McColl JA's detailed judgment in Juul v Northey [2010] NSWCA 211, agreed by Basten JA and Campbell JA. Aspects of the judgments of McColl JA and Basten JA are considered in more detail below. 34The costs orders on appeal significantly varied the costs outcome of the trial. The Court of Appeal set aside Macready AsJ's judgment and all the costs orders his Honour had made on 23 July 2008. In lieu the Court of Appeal ordered that:- (1)Mr Henry Northey should pay Mrs Juul's and Mr James Northey's costs of all the proceedings at first instance (the wilful default hearing and the accounting hearing) with the exception of two procedural motions in 2004; (2)Mr Henry Northey should pay Mrs Juul's costs of the appeal; (3)Mrs James Northey should bear his own costs of the appeal; (4)Mr James Northey should pay Mrs Juul's costs of the Summons seeking leave to appeal; and (5)Mr Henry Northey should pay Mrs Juul's costs of the cross-appeal. 35Mr Henry Northey sought to appeal further. On 23 September 2010 he filed an application for special leave to appeal to the High Court. But on 17 March 2011 the High Court dismissed his application with costs. 36In the result, by March 2011 Mrs Juul was successful on the three main matters contested in the litigation: matters concerning lot 51, lot 52, and the costs of the renovations. She had the benefit of awards of party/party costs in her favour and against Henry and James, reflecting those successes. Mrs Juul has not sought since March 2011 to have any of the costs orders in her favour enforced or the costs assessed. 37For the next two years, between March 2011 and March 2013 the parties, including the present trustees, exchanged correspondence about the legal, costs, administration and financial consequences of the outcome of this litigation. The position that Mrs Juul advanced as early as April 2011 and still advances in the present applications, largely defines the issues still in contest. 38In a letter of 15 April 2011 Mrs Juul's solicitors contended that the result of the litigation after the Court of Appeal's decision was that she was entitled to have her costs paid out of the estate as follows: "We submit that a proper analysis of the parties' respective positions are as follows: (a)Mrs Juul is presently the legal and beneficial owner of the various costs orders (and causes of action against the lawyers, if any) (b)Mrs Juul is presently the owner of the equitable right of exoneration by way of reimbursement from the estate. (c)Mrs Juul is presently the owner of an equitable charge over the assets of the estate securing her entitlement to that reimbursement. (d)As and to the extent that the estate reimburses her for her costs and expenses, Mrs Juul will hold those rights on trust for the estate and/or the estate will be entitled, in equity, to subrogate itself to exercise those rights. (In such an event, the present trustees and Mrs Juul should ideally act in concert to ensure (a) no duplication of effort and cost, (b) no duplication of recovery, and (c) no right of recovery abandoned without a common resolution to that effect.) (e)As a beneficiary of the estate, Mrs Juul has an interest in the recovery of as much of the costs and expenses from the persons who should ultimately bear that liability. (f)Until each of Henry Northey and Jim Northey has paid his obligations under the costs orders, the estate has an equitable charge (and a right of ser of in that respect) against his respective one seventh of the net estate." 39Mrs Juul asked the present trustees to fund the task of having her costs assessed, which request the present trustees rejected. Mrs Juul's contentions about her entitlements as the successful defendant and as a former trustee of Mrs Northey's estate were neither accepted by the present trustees nor by the other parties to the litigation. 40The detail behind Mrs Juul's contentions is examined below in dealing with her motion for indemnity and the present trustees' motion for judicial advice. The Present Trustees' And Mrs Juul's Motions 41The present trustees seek to complete the administration of the estate. To that end, they filed a motion for judicial advice on 10 May 2013 to facilitate the distribution of the estate. The present trustees motion seeks the opinion, advice or direction of the Court on the following: "1. Whether on the facts and in the circumstances which have occurred: John Stewart Hunter and Richard Booker as the executors of the estate of the late Betty Frances Northey ('the Deceased') would be justified in distributing the residual estate of the Deceased on the basis that:- (i) No liability exists on the part of the estate to Henry James Northey for estate expenses allegedly incurred by him from and during the period 2006 to 2008. (ii) No liability exist on the part of the estate to James Knight Northey for estate expenses allegedly incurred by him from and during the period 2006 to 2008. (iii) James Knight Northey is liable to repay to the estate:- (a) Monies received by him from the trust account of Wood Marshall Williams, solicitors (the previous solicitors acting on behalf of the estate) in the sum of $6,669.56; and (b) Rent payable to the estate in respect to the occupation by James Knight Northey of the estate property known as [address not published], Collaroy in the agreed sum of $11,640.00. (iv) Jennifer Frances Juul is liable to repay to the estate monies received by her or for her benefit from the trust account of Wood Marshall Williams, solicitors (the previous solicitors retained on behalf of the estate) in the sum of $18,537.32. (v) The estate is liable to pay to Henry James Northey the sum of $4,049.50 being his legal costs as agreed in respect to the two notice of motion dated 7 April 2008 and that dated 7 July 2008. (vi) No liability exists on the part of the estate to James Knight Northey in respect to his legal costs of the two notice of motion dated 7 April 2008 and that dated 7 July 2008. (vii) No liability exists on the part of the estate to Jennifer Frances Juul in respect to her legal costs of the two notice of motion dated 7 April 2008 and that dated 7 July 2008." 42The present trustees also ask that their costs of their May 2013 motion be paid out of the estate on an indemnity basis. 43Mrs Juul filed her own motion on 14 June 2013. Her motion sought relief to give effect to her solicitors April 2011 contentions, declarations and orders to the effect that her costs incurred in the trial, on appeal and in the application for special leave, should be paid out of the estate on the trustee basis and that she is entitled to be indemnified in respect of her costs out of the assets of the estate. The four declarations she seeks are as follows: "1. In respect of the "Heads of Loss" identified in Schedule below, a DECLARATION that the first defendant is entitled to an indemnity and to reimbursement our of the estate of the late Betty Northey (the estate). 2. A DECLARATION that: a. the trustees hold the value of such of the first defendant's entitlements as determined by the Court pursuant to paragraph 1 above on trust for the first defendant; b. the assets of the estate stand charged to the first defendant's benefit with the value of such of the first defendant's entitlements as determined by the Court pursuant to paragraph 1 above; and c. such charge has priority over: i. any later incurred expenses of the estate; and ii. the beneficiaries' interests in the estate. 3. In respect, and to the extent of, any funds paid out of the estate to the first defendant or on her behalf pursuant to the first defendant's entitlements as determined by the Court pursuant to paragraph 1, a DECLARATION that: a. the first defendant holds the legal rights in any relevant costs orders and causes of action on trust for the estate; and b. the trustees of the estate from time to time are entitled to subrogate themselves to exercise the first defendant's relevant legal rights. 4. A DECLARATION that each of the plaintiff's and the second defendant's beneficial share in the estate stands charged to the trustees' favour to the extent of his respective unpaid liabilities under the "Costs Order" identified in the Schedule" 44Mrs Juul also seeks recovery of the costs of her June 2013 motion. The "Heads of Loss" referred to in the Schedule to Mrs Juul's June 2013 Motion are various legal costs she has incurred throughout the litigation, administration costs, funding costs, costs associated with Mr Henry Northey's caveat, and the costs of these proceedings. These individual claims are identified in the course of the Court's reasons below. 45Mrs Juul's primary contention on her June 2013 motion is that she was one of two executors and trustees of Mrs Northey's estate who has successfully defended unmeritorious accusations against her, which proceedings have resulted in her incurring legal costs in the order of some $460,000. Having been exonerated in respect of her conduct, she seeks to be reimbursed and indemnified for her expenses incurred as executor and trustee of the estate. She contests the decisions of the present trustees to deny her that entitlement. Moreover, she contests their request for her to refund some reimbursements made to her several years ago. 46Before first considering Mrs Juul's motion, one procedural issue arises. Mr James Northey did not attend the hearing that took place on 17 and 18 September 2013. But I am satisfied from affidavits of service of both motions upon him that he had adequate notice of the proceedings against him. The present trustees read an affidavit of service of Mark Norman Smith of 28 May 2013, and Mrs Juul read an affidavit of service of James Bernard McGuinness of 28 June 2013. Both deposed to service of the motions on Mr James Northey at the same home address. Several directions hearings took place after the first return date of the motions and Mr James Northey did not attend any of those directions hearings. 47Although no specific notice of the hearing date of 17 September 2014 was given to Mr James Northey after service of the motions upon him, the Court requested the parties to attempt to contact him during the hearing. A number of attempts were made to contact him but all were unsuccessful. 48All the other parties were legally represented at the hearing. Mr J. Drummond of counsel appeared for the Present Trustees. Ms R. Winfield of counsel appeared for Mr Henry Northey. And Mr R. Lovas of counsel appeared for Mrs Juul. The legal representatives of these parties efficiently conducted a hearing with its many sub issues, within the allotted two days for hearing. Mrs Juul's Motion Mrs Juul's Contentions 49Mrs Juul has sought a declaration that she is entitled to an indemnity and to reimbursement out of the estate of her expenses particularised in the Schedule to her notice of motion. 50The Quantum of Mrs Juul's Costs. Mrs Juul's costs are substantial. But that is not surprising after 10 years of litigation. Her claimed costs as co-executor and co-trustee of Mrs Northey's estate are $459,963.16. This sum is broken up into its component parts later. But Mrs Juul's claim for this sum does not include: (1) any interest Mrs Juul has had to pay from her own resources to fund the payment of these costs; nor (2) the costs she incurred in the present applications. 51None of Mrs Juul's claims for costs have yet been referred for assessment. She first submits that there is no challenge to her claim to an indemnity from the estate for this $459,963.16 in costs on the basis that: (1) it was not "reasonably as well as honestly incurred"; and therefore (2) falls outside the principle of reimbursement in National Trustees Executors and Agency Company of Australasia Limited v Barnes (1941) 64 CLR 268 ("Barnes") at 277 per Williams J and Dawson v Clarke (1811) 18 Ves 247, at 254; (1811) 34 ER 311. 52But that is not correct. The other parties certainly do not dispute the quantum Mrs Juul claims or that she actually incurred legal costs and disbursements for which she is liable to her legal representative. The time to challenge the quantum of legal costs she claims by the usual processes as costs assessment has not yet arisen, as the costs have not been referred for assessment. But the Present Trustees and Mr Henry Northey are nevertheless contending, that recovery of any part of Mrs Juul's costs of $459,963.16 would be unreasonable, because although they may be characterised as incurred as expenses of a co-executor/co-trustee, the application of other legal principles bars Mrs Juul from reimbursement for these expenses from the estate. 53Allowing Mrs Juul recovery of her costs from the estate has a substantial effect on the entitlements of the seven beneficiaries of the estate. At the time of hearing the estate had a net distributable value of $757,495, subject to the further deduction of the Present Trustees' costs associated with these motions. Each of the seven beneficiaries would be entitled to a distribution of $108,213.57, if there were no further deductions from the estate. But if Mrs Juul's claimed costs of $459,963.16 were to be allowed out of the estate in full, each beneficiary's entitlement would reduce to $42,504.55 (being $757,495 less $459,963.16 divided by 7), a figure only approximately 39 per cent of the $108,213.57 entitlement that each beneficiary would otherwise receive. 54In addition to seeking a charge over estate assets for the payment of these costs, Mrs Juul also seeks in her motion a charging order over Mr Henry Northey's share and Mr James Northey's share of the estate. But the costs figures in the previous paragraph show that their combined entitlements to the estate of $216,427.14 would be insufficient to meet all Mrs Juul's liabilities for costs of $459,963.16; the short fall would be $243,536.02, which would have to be shared by the remaining five beneficiaries. 55Four Sources of a Trustee's Indemnity. Mrs Juul puts her claim to an indemnity from the estate in four ways. First, the right of indemnity is said to be an incident of her office as trustee of the estate: Barnes, at 277. Secondly, Trustee Act 1925, s 59(4), restating the position at general law, permits a trustee to "reimburse himself or herself or to pay or discharge out of the trust property all expenses incurred in or about execution of the trustee's trust or powers": Gatsios Holdings v Kritharas Holdings (In Liquidation) [2002] NSWCA 29 ("Gatsios"), [9] and [45]. Thirdly, Uniform Civil Procedure Rules ("UCPR"), r 42.25(1) provides that a person who has been a party to proceedings in the capacity of trustee "is entitled to be paid his or her costs of the proceedings, in so far as they are not paid by any other person, out of the fund held by the trustee" (UCPR, r 42.25(1)) unless the trustee "has acted unreasonably" or "has in substance acted for his or her own benefit rather than for the benefit of the fund" (UCPR, r 42.25(2)). And fourthly, Mrs Northey's will itself provides (in clause 8) that "no Trustee of this my Will shall be liable for any loss not attributable to: (a) wilful neglect or default; or the commission by him of any act known to him to be a breach of trust". On that scenario each of the other beneficiaries would receive the slightly greater amount of $59,506.37, being $108,213.57, less $48,707.20 ($243,536.02 divided by 5). 56The application of each of these four sources of Mrs Juul's claimed right to indemnity produces the same result. Although the language of each source is different, as the reasoning below shows, there is no circumstance here in which the choice of one or other source of the claimed right to indemnify will lead to a different outcome. 57The Will as a Source of Indemnity. But Clause 8 of the Will as a source of indemnity was a point of particular contention. Mr Henry Northey took issue with the extent of the indemnity that clause 8 affords, submitting that it only refers to losses of the estate, not to the executor's personal losses. 58But this submission is not persuasive. For Mr Henry Northey's construction of clause 8 to work additional words of limitation need to be added to the expression "any loss", additional words that the testatrix did not use. And the will should be construed in the context of the law prevailing at the time it was made (Re March; March v Harris (1884) 27 Ch D 166), which law includes the first three sources of the right to indemnity described above. In my judgment the testatrix's words do not evince any intention to derogate from those rights, which would be the effect of Mr Henry Northey's claimed construction. 59A Charge Over the Estate's Assets. Mrs Juul also claims that the present trustees hold the value of her entitlements to an indemnity or reimbursement out of the estate, on trust for her. She claims that she has a charge over the estate for her entitlements which has priority over any later incurred expenses of the estate and over the beneficiaries' interests in the estate. 60Once a trustee's right to indemnity/reimbursement is recognised, the trustee's right to the recovery of this entitlement against the estate in priority to the rights of beneficiaries is well established. The High Court stated the applicable principles in Octavo Investments Pty Limited v Knight (1979) 144 CLR 360 ("Knight"), at 367 in the following terms: "We do not understand the general principles concerning the bankruptcy of a trading trustee to be in dispute. It is common ground that a trustee who in discharge of his trust enters into business transactions is personally liable for any debts that are incurred in the course of those transactions: Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319. However, he is entitled to be indemnified against those liabilities from the trust assets held by him and for the purpose of enforcing the indemnity the trustee possesses a charge or right of lien over those assets: Vacuum Oil Co Pty Ltd v Wiltshire, supra. The charge is not capable of differential application to certain only of such assets. It applies to the whole range of trust assets in the trustee's possession except for those assets, if any, which under the terms of the trust deed the trustee is not authorised to use for the purposes of carrying on the business: Dowse v Gorton [1891] AC 190; [1891-4] All ER Rep 1230. In such a case there are then two classes of persons having a beneficial interest in the trust assets: first, the cestuis que trustent, those for whose benefit the business was being carried on; and secondly, the trustee in respect of his right to be indemnified out of the trust assets against personal liabilities incurred in the performance of the trust. The latter interest will be preferred to the former, so that the cestuis que trustent are not entitled to call for a distribution of trust assets which are subject to a charge in favour of the trustee until the charge has been satisfied: Vacuum Oil Co Pty Ltd v Wiltshire,supra." 61The priority of the trustee's charge over the beneficiaries' interest in the trust fund means it can truly be said, that until the right to reimbursement or exoneration has been satisfied "it is impossible to say what the trust fund is": Dodds v Tuke (1884) 25 Ch D 617, at 619, and Commissioner of Stamp Duties v Buckle (1998) 192 CLR 226 ("Buckle"), at [48]. The entitlement of the beneficiaries is confined to so much of the trust assets as are available after the liabilities to the trustee have been discharged, or provision has been made for them: Kemtron Industries Pty Limited v Commissioner of Stamp Duties (Qld) [1984] 1 Qd R 576, at 587, and Barnes, at [48]. To the extent that the assets held by the trustee are subject to their application to reimburse or exonerate the trustee, they are not "trust assets" or "trust property" in the sense that they are held solely upon trusts imposing fiduciary duties which bind the trustee in favour of the beneficiaries: Knight at 370 and Buckle at [48]. The rationale for giving this priority to the trustees' entitlement to reimbursement or exoneration was identified by Lindley LJ as being "the price paid by cestuis que trust for the gratuitous and onerous services of trustees": In re Beddoe [1893] 1 Ch 547, at 558 and Buckle at [49]. 62In summary, Mrs Juul argues that the Present Trustee hold the remaining fund of $757,495: (i) to satisfy Mrs Juul's equitable charge to secure her right to exoneration and reimbursement, (ii) to satisfy their own equitable charge to the same effect, and then (iii) to pay the residue to the beneficiaries. She further submits that if the fund were to be insufficient to satisfy the financial obligations represented in both (i) and (ii), that satisfaction of (i) would take priority over (ii) in the application of the conventional principles of giving priority to the interest created earlier in time: Heid v Reliance Finance Corporation (1983) 154 CLR 326. The Present Trustees' and Mr Henry Northey's Issues and their Resolution 63The Present Trustees and Mr Henry Northey attack Mrs Juul's case for indemnity out of the estate through arguments of two principal types: the first type are arguments of general application to all Mrs Juul's legal expenses; and the second type are arguments that have application only to particular expenses that Mrs Juul claims. Each of the non-Juul parties' arguments will be dealt with in this section. The non-Juul parties' arguments do not take any issue with the statements of legal principle above about a trustee's general entitlement to exoneration or of reimbursement and a trustee's charge over estate assets in priority beneficiaries to secure this entitlement. But the non-Juul parties seek to distinguish the present case from general applications of these principles. 64Trustee or Executor? But there is one preliminary issue. Mr Henry Northey argued that Mrs Juul is not entitled to an indemnity because she never administered the estate as a trustee, only as an executor. The Present Trustees do not advance this argument. 65The argument is not persuasive. First the distinction between Mrs Juul acting as an executor and acting as a trustee is a distinction without a relevant difference for the issues under present consideration. One of the bases on which Mrs Juul rests her claim to an indemnity is Trustee Act, s 59(4). The term "trustee" in the Trustee Act includes "legal representative", which in turn includes "executor": see Trustee Act, s 5. Thus, Mrs Juul's right of indemnity does not depend on establishing that administration of the estate had concluded. But in any event, by 5 April 2004 Mrs Juul and her co-executor Mr James Northey held sufficient funds on trust for the beneficiaries that they were able to make a partial distribution from the estate. There is nothing in this point. 66The parties' submissions about Mrs Juul's entitlement to reimbursement of her costs from the estate present the following sequence of questions for the Court's consideration. (a) What is the proper basis in principle of any entitlement Mrs Juul may have to reimbursement of her costs from the estate? (b) Is her entitlement to be assessed on the basis that she was successful in the litigation? (c) Do any of the recognised exceptions to trustees' entitlements to reimbursement for their costs apply here? (d) As an order for reimbursement was not made in the Court of Appeal, is it now too late for such an order to be made? (e) If reimbursement were ordered, should the whole or some lesser part of Mrs Juul's costs be reimbursed? (f) If reimbursement were ordered, should it be on condition that Mrs Juul first attempts recovery of her costs? (g) If reimbursement were ordered, should any person(s) share of the estate first bear the burden of the reimbursement? 67Some facts that are central to the contest require emphasis at the outset. All the costs for which Mrs Juul is seeking reimbursement have already been incurred, other than the costs of this application. Mrs Juul never at any time before they were incurred sought judicial advice as to whether she was entitled to reimbursement of her costs from the estate. Some of the costs Mrs Juul claims were incurred when she was a trustee of the estate and some only after she retired as a trustee in July 2008. In the result at first instance, when Mrs Juul and Mr James Northey were co-trustees of the estate, she was unsuccessful as to part of her claim. But Mrs Juul was found to be wholly successful on appeal, although only after she retired as a co-trustee of the estate, and by reason of her expending her own resources on an appeal. The costs for which she now claims reimbursement span the period both before and after her co-trusteeship. She has not attempted to enforce the costs orders she gained against Mr Henry Northey from the Court of Appeal. (a) The Proper Basis of any Entitlement? 68Mrs Juul's submissions as to the principles that justify her claimed entitlement to reimbursement are generally well founded and were not in contest. The main area of contention was in applying the principles. The contest offered by the non-Juul parties brings two subjects into immediate focus: (1) the indemnity consequences of a trustee's success in estate litigation; and (2) the three classes of trustee litigation. Before fully examining the non-Juul parties' arguments it is useful briefly to state some applicable law in relation to these subjects. 69(1) A Trustee's Successful Defence of Litigation Justifies Indemnity. The non-Juul parties argued that prior to retiring as a co-trustee Mrs Juul had failed in the litigation Mr Henry Northey had brought against her. As she had not sought a Beddoe order before defending herself in these proceedings the non-Juul parties argued that she was therefore not entitled to recover any of her defence costs from the trust fund. The Court has not ultimately found this argument persuasive. 70The applicable principles may be shortly stated. Trustees are entitled to a lien on the trust fund for the costs of successfully defending themselves against an action for breach of trust, as the cases involving successful trustees in litigation show: Walter v Woodbridge (1878) 7 Ch D 504, Re Spurling's Will Trusts [1966] 1 WLR 920 and Armitage v Nurse [1988] Ch 241 at 262 C-D, per Millett LJ. Just because trustees are defending themselves against a claim to recover money from them for the benefit of the trust is not of itself sufficient to deprive the trustees of their right to recoup their costs out of the trust fund; if the trustees are successful, then the claim against them was not well founded and the defence was shown to be beneficial to the estate, even though the trustees were also defending their own character and they cannot be denied their right to recoupment: Walter v Woodbridge (1878) 7 Ch D 504 per James LJ at 510, and In Re Spurling's Will Trusts [1966] 1 WLR 920, at 932 H-933A, 935-936, per Ungoed-Thomas J; and Frost v Bovaird [2012] FCAFC 60, at [71]. And as Williams J said in Barnes (at p 279) of a trustee defending his or her conduct, "even if he fails in the suit he may be allowed his costs out of the estate, but if he succeeds, as in this case, he is clearly entitled thereto". 71In contrast, there is no entitlement for trustees to recoup themselves out of the trust fund for the costs of unsuccessfully defending themselves against an action for breach of trust: Armitage v Nurse [1988] Ch 241, at 262 E-F, per Millett LJ. Even if a claim for an account or for money succeeds against trustees, they may nevertheless be found not to have misconducted themselves so as to lose their right of recoupment: Armitage v Nurse [1988] Ch 241, at 263 A, per Millett LJ. Given the comparatively small expense with which trustees can obtain the opinion of an Equity judge if a trustee brings or defends an action unsuccessfully and without leave it is for the trustee to show that the costs so incurred were properly incurred; and the fact that the trustee acted on counsel's opinion is no indemnity to the trustee even on a question of costs: Stott v Milne (1884) 25 Ch D 710 and In Re Beddoe, Downes v Cottam 547, at 558 per Lindley LJ, and at 562 per Bowen LJ. 72(2) The Three Classes of Trust Litigation. The Present Trustees also argue that this is trust litigation of a particular kind, a hostile beneficiaries dispute, in which the applicable rule is that all parties, including trustees must bear their own costs. For reasons that are later explained in my judgment this argument misconstrues relevant authority. But it is first necessary to understand these various categories of litigation. 73The relevant law may be shortly stated. For the purposes of assessing the proper incidence of costs Kekewich J explained in In Re Buckton; Buckton v Buckton [1907] 2 Ch 406 at 414 to 415 that trust litigation may be divided into three classes: (1) trustees applications to construe the trust instrument to ascertain the interests of the beneficiaries or to have a question determined that has arisen in the administration of the trusts, a class in which costs will be necessarily incurred for the benefit of the estate or should be taxed as between solicitor and client and paid out of the estate; (2) applications made in form by a beneficiary but which are in substance the same as the first class of application and could have been brought by the trustees (to this class the same costs rule applies as the first class as the costs of all parties are necessarily incurred for the benefit of the estate regarded as a whole); and (3) for applications made by beneficiaries who make adverse claims against other beneficiaries, whether by originating Summons or Statement of Claim, the rule in adverse litigation applies that the unsuccessful party bear the costs of all who that party has brought before the Court, although sometimes the unsuccessful party may not be ordered to pay the costs of the trustees: see also McDonald and others v Horn and others [1995] 1 All ER 961, at 970h - 971b, per Hoffman LJ. 74In a beneficiaries dispute, where misconduct is alleged against a trustee, the trustee is, pending the determination of that claim, not prima facie entitled, without more to an In Re Beddoe order to use the trust funds to meet legal costs incurred in defending the claim: Frost v Bovaird [2012] FCAFC 60, at [79]. But the Court may sometimes feel confident in a beneficiaries dispute that the case is nearly within the first or second class, so as to be able to make a prospective order (usually with the support of the trustee) that parties other than the trustees may have costs out of the fund in any event; but such cases are rare: Re Exchange Securities and Commodities Ltd (No. 2) (1985) BCLC 392, at 395 and McDonald v Horn [1995] 1 All ER 961, at 971 E-G. (b) Was Mrs Juul Successful in the Litigation? 75The non-Juul parties argued that Mrs Juul was: not successful in the litigation when she was a co-trustee, so in the absence of a Re Beddoe order she was not entitled to reimbursement; and if she was ultimately successful, she was only successful in the litigation by orders that were operative by which time retired as a co-trustee, so she was still not entitled to reimbursement. In response Mrs Juul argued that her entitlement to reimbursement should be assessed on the basis that she had been wholly exonerated ex post facto for her conduct as a co-trustee and that she was therefore entitled to reimbursement of all her legal expenses when performing her role as co-trustee before 23 July 2008 and also to reimbursement of all her legal expenses of later vindicating her role as co-trustee. 76These competing contentions raise three questions: (1) at what point in time should Mrs Juul's success in the litigation be assessed; (2) was Mrs Juul successful in the proceedings in the sense required by the authorities so as to justify her reimbursement from the estate of the charges and expenses associated with her defence; and (3) if the time for assessment of her success is after Mrs Juul retired as a co-trustee, is she entitled to reimbursement for the legal costs she incurred after her retirement in establishing that she should have been successful in the litigation when she was a trustee. 77(1) The time to assess success. The first question is at what point in time should Mrs Juul's success in the litigation be assessed. Both authority and general principle indicate the answer: a trustee who successfully litigates as a trustee does not have to achieve that success before retiring as a trustee in order to be entitled to reimbursement of the trustee's charges and expenses of the litigation from the estate. 78Authority provides examples of trustees defending litigation as trustees, who were only ultimately proven successful after they retired as trustees but who were nevertheless permitted to be reimbursed from the trust fund for their charges and expenses in the litigation. The solicitor-trustee in In Re Spurling's Will Trusts [1966] 1 WLR 920, at 924, whose costs were in question had retired from his office and been replaced by a new trustee once he was sued by beneficiaries in the principal action. The principal proceedings were defended by a replacement trustee, rather like the latter part of these proceedings after 23 July 2008. The precise issue before Ungoed-Thomas J in Spurling was whether the solicitor-trustee was entitled to have his costs out of the trust fund after he (and a co-trustee) had successfully seen off a challenge to their administration of the trust by the two beneficiaries. Ungoed-Thomas J held (at p936) that he was so entitled. The report in Spurling shows that the solicitor-trustee's retirement from office was not suggested as an obstacle to his recovery from the fund. Ungoed-Thomas J in Spurling (at p936) allowed him to recoup from the fund in accordance with the formula in In re Grimthorpe decd [1958] Ch 615, at 621 "Costs and expenses of and incident to this action". 79Considerations of general principle lead to the same result. The effect of the Court of Appeal's decision on 26 August 2010 was to set aside all the substantive orders Macready AsJ made on 23 July 2008 in favour of Mr Henry Northey and to substitute therefor new orders dismissing Mr Henry Northey's summons and requiring Mr Henry Northey to pay Mrs Juul's costs of the proceedings at first instance: Juul v Northey [2010] NSWCA 211 at [250]. The Court of Appeal's order wholly replaces Macready AsJ's order. At all times after 26 August 2010 the result of the proceedings before Macready AsJ is the result that the Court of Appeal pronounced. Macready AsJ's original 23 July 2008 orders are no longer operative. When the Court is now asked to assess Mrs Juul's success or failure in the proceedings it must have regard to the outcome of those proceedings as the Court record now stands. To do otherwise would be to indulge in an unacceptable fiction: pretending that the Court of Appeal's decision never occurred and accepting a result of these proceedings based on (Macready AsJ's) reasoning which is inconsistent with the Court of Appeal's decision. 80(2) Was Mrs Juul successful in the requisite sense? By every available measure Mrs Juul was successful in the Court of Appeal. No adverse findings as to her conduct as co-trustee survived her appeal. Her success on appeal was unpalatable to Mr Henry Northey - witness his application for special leave to appeal to the High Court - but success it was nevertheless. 81Short analysis of the Court of Appeal's reasons in Juul v Northey [2010] NSWCA 211 demonstrates Mrs Juul's complete success on appeal. Mrs Juul succeeded on appeal not just because of the poorly articulated and imprecise pleading against her (at [183] and [184]), but because the case of wilful default sought to be made against her lacked a proper evidentiary and legal foundation. 82The wilful default case was defective in many respects. The Court of Appeal concluded: (at [221]) that the trial judge "did not identify a jurisprudential basis upon which he held...Mr and Mrs Juul were obliged to account to the estate" so as to demonstrate even "one instance of wilful default...in the executor's failure to get in the amount due to be refunded"; (at [226]) that the objective evidence supported Mr and Mrs Juul's case that Mrs Northey was content for Mr Juul to carry out the work without requiring a detailed accounting or a refund; (at [234]) that the primary judge erred in finding Mr and Mrs Juul owed any moneys to the estate; and (and [246]) that the primary judge's finding of wilful default should not have been made. 83The Court of Appeal's decision removed the sole basis of the primary judge's findings against Mrs Juul as a trustee and wholly justified Mrs Juul's decision to defend herself against an unmeritorious claim against her as trustee. She was completely successful. 84(3) Mrs Juul's charges and expenses after retirement. The Present Trustees submit that Mrs Juul's liability for legal expenses incurred after she retired as a co-trustee by the Court's orders on 23 July 2008 fall into a special category: she was not then a trustee, and was no longer litigating in that capacity but took up her appeal in her personal capacity. Her retirement came at the conclusion of the first instance hearing before Macready AsJ. So this argument potentially affects the recovery of the costs she incurred in the Court of Appeal and the High Court. 85Mrs Juul's answer on this issue is persuasive. The issue is whether the questioned expenses were "properly incurred by the trustee as an incident of his administration of the state": Barnes, at 279 per Williams J. She submits it is not axiomatic that such expenses must be incurred whilst the trustee is in office. 86Indeed a moment's reflection provides simple examples of expenses that naturally arise after a trustee has retired, which would be commonly regarded as "incidental" to the administration of an estate: a trustee may have to travel to Court to consent to orders for his or her retirement as trustee, as part of the trusts' efficient administration; it could not readily be argued that the expense of the trustee's return journey after retirement was not an expense "incidental" to the administration of the estate. 87But Mrs Juul's legal costs and other expenses are of a far more substantial nature than this example: they involve the whole of Mrs Juul's costs of conducting the appeal in the Court of Appeal, to overturn Macready AsJ's judgments against her and then defending that result in the High Court special leave application. They also include various financial costs, which are separately considered later in these reasons. Yet subject to consideration of the several possible exceptions to reimbursement, the fact that many of these expenses and charges were only incurred after Mrs Juul's retirement is not in itself, in my opinion, an obstacle to Mrs Juul recovering them from the estate, provided of course they can still be properly classified as an "incident" of the trustee's administration of the estate. 88There are good reasons for this. It is open to a person in the position of a trustee, defending the trustee's own conduct as trustee in litigation, to expend, and so put at risk, the trustee's own personal financial resources in the event of the trustee's failure in the litigation, rather than for the trustee to apply for an In Re Beddoe order, and thereby place the trust fund at risk of the trustee's lack of success. If the trustee is ultimately successful in defending the trustee's conduct as trustee, then the trustee is treated retrospectively as being "in the same position as to indemnity, as if he had made that application": Bristowe v Needham (1847) 2 Ph 190, 191, quoted in In re Dunn [1904] 1 Ch 648, at 657. Ungoed-Thomas J vividly affirmed this principle in In Re Spurling (at p436B) "To me, it would be a topsy-turvy Alice in Wonderland law if it were otherwise." 89But if this choice is open to the trustee to act independently of the trust with the trustee's own resources to defend (and if successful, thereby to retrospectively validate) the trustee's own conduct as trustee, there seems to be no principled basis for revoking the trustee's clear right of independent action in self defence or for recoupment just because the trustee happens to cease to be trustee. Despite retirement the trustee still in justice should have an indemnity for properly incurred past administration expenses. 90For example, supervening personal incapacity or conflict of interest may mean a trustee is not personally responsible for retirement as trustee and yet may be required after retirement to defend past conduct as a trustee so as to obtain indemnity from the trust. It would place trustees in a very precarious position if their right of indemnity were dissolved once a beneficiary removed them. That is hardly consistent with an important objective of trust law, "not to impair...the safety of trustees" nor to "frighten [ ...] wise and honest people from undertaking trusts": Turner v Hancock (1882) 20 Ch D 303, at 304 per Jessel MR. 91Moreover, if a trustee's successful defence actually vindicates the trustee's past administration of the trust, then the trustee's administration and the trustee's costs of defending the trustee's administration are adjudged (see the discussion under question (c) below) to be for the benefit of the trust. Why in those circumstances should the trustee not have all those defence costs, whenever incurred, out of the trust estate? 92Subject to the matters considered below, Mrs Juul should have an indemnity from the estate for her legal costs incurred after 23 July 2008 in the Court of Appeal and in the High Court. (c) Do any Recognised Reimbursement Exceptions Apply? 93Apart from dishonest conduct, which is not in question here, there are two principal exceptions to a trustee's right of reimbursement from the trust for expenses otherwise properly incurred in trust administration: (1) if the trustee's conduct has been unreasonable; and (2) if the trustee has acted in substance for his or her own benefit, rather than for the benefit of the fund. 94The non-Juul parties argue that both of these exceptions apply here. Mrs Juul argues neither is applicable. For the reasons that follow the Court finds persuasive Mrs Juul's submissions on the issue of the application these exceptions. 95Alleged unreasonable conduct. Mrs Juul did not at any time apply for a Re Beddoe order. The non-Juul parties argue this is unreasonable conduct, thereby depriving her of her right to indemnity from the estate. 96The exception to a trustee's rights of reimbursement for the trustee's unreasonable conduct is clear. If a trustee is mistaken or makes a claim against the estate not allowable in law, then the trustee should nevertheless have costs out of the estate that are incurred without impropriety; that is (i) if the trustee has resisted a claim but has been found guilty of breach of trust, the trustee's costs of resisting the action should be paid by the trustee as the penalty for breach of trust; and (ii) if the trustee found to have been dishonest or to have behaved unreasonably, then the trustee may be deprived of the trustee's costs: In Re Jones; Christmas v Jones [1897] 2 Ch 190 at 197, 198 per Kekewich J. A trustee will be indemnified out of the trust estate in respect of costs, charges and expenses properly incurred for the benefit of the trust; and "properly" in this context means reasonably as well as honestly incurred, so that whilst trustees ought not be visited with personal loss on account of mere errors in judgment, which fall short of negligence or unreasonableness, mere bona fides is not the test: see Mead v Watson (as liquidator for Hypec Electronics) [2005] NSWCA 133; (2005) 23 ACLC 718 and Bovaird v Frost [2009] NSWSC 917 at [33]. 97A trustee may seek the opinion advice or direction of the Court under Trustee Act 1925, s 63 on the question of whether the trustee should either commence or defend litigation. A trustee who does not obtain such advice from the Court was described by Lindley LJ in Re Beddoe (1893) 1 Ch 547, at 557, thus: "A trustee who without the sanction of the Court commences an action or defends an action unsuccessfully does so at his own risk as regards the costs even if he acts on counsel's opinion and when the trustee seeks to obtain such costs out of his trust estate he ought not to be allowed to change them against the cestui que trust unless under very special circumstances." 98An important justification for the Trustee Act, s 63 procedure was to enable trustees "to take advice before embarking on any course which might carry a risk of incurring costs that might be outside the indemnity: Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar [2008] HCA 42 ("Macedonian Orthodox"), at [69]. The indemnity for the proper expenses of trustees exists so that "persons who take the onerous and sometimes dangerous duty of being trustees are not expected to do any of the work at their own expense: they are entitled to be indemnified against the costs and expenses which they incur in the course of their office": In re Grimthorpe (deceased) [1958] Ch 615 at 623 per Danckwerts LJ. 99The Present Trustee's argument. The Present Trustees submit Mrs Juul is not entitled to an indemnity for her expenses, because she did not apply for a Re Beddoe order before defending the claim against her. They submit that where Mrs Juul was "defending a claim of wilful neglect (a personal claim) the failure to obtain a Re Beddoe order was [the neglect of] a 'crucial' step to ensure the right to be indemnified": Frost v Bovaird & Ors [2012] 203 FCR 95 at [81] - [82], p 109, and [2012] FCAFC 60 at [81] - [82]. 100The Present Trustees argue that had a Re Beddoe order been sought that this proceeding would have been recognised for what it is, a "beneficiaries dispute", a dispute "in which in the ordinary course, where as here the parties are all sui juris, the disputing parties and not the estate should bear the costs of the litigation. This principle is said to be of particular force when, as here, not all the beneficiaries are parties to the litigation: Evans v Evans [1985] 3 All ER 289, per Nourse LJ at 293; and Re Dallaway (Deceased) [1982] 3 All ER 118, (1982) 1 WLR 756. 101Here the Present Trustees argue only three of the seven beneficiaries were parties to the litigation. Although Mr Henry Northey declared at various times that he was commencing his litigation on behalf of the four eldest children, the other three older siblings, Mrs Elizabeth Sim, Mrs Julia Orofino and Mr John Northey were never co-plaintiffs with Mr Henry Northey and were not joined as defendants. There were only a minority (three) of the seven beneficiaries joined as parties to these proceedings. The other four non-litigious beneficiaries stood to have their entitlement to the residue adversely affected by the litigation. The Present Trustees submit that where a trustee is not a beneficiary that it is generally held that to preserve trust property the trustee should be excused from the proceedings and the adult beneficiaries should be left to contest the issues in the litigation at their cost. 102Mrs Juul's conduct not unreasonable. The Present Trustees' submissions overstate a trustee's requirement to obtain a Re Beddoe order. The lack of a Re Beddoe order does not disentitle a trustee from later seeking indemnity/reimbursement after successfully defending litigation. As Lindley LJ said in In Re Beddoe, "a trustee who without the sanction of the Court...unsuccessfully defends an action, does so at his own risk", namely a risk of a later finding that the trustee's costs of unsuccessfully litigating, for which the indemnity is being sought, were "improperly incurred": In Re Beddoe (1893) 1 Ch D 547, at 557-558. As Brereton J explained in Bovaird v Frost [2009] NSWSC 917 at [32], the absence of judicial advice in the nature of an In Re Beddoe order "does not reverse the prima facie position established by UCPR r 42.25". 103But here Mrs Juul was ultimately successful in her defence of all claims made against her, thereby answering the contention she may have acted unreasonably without an In re Beddoe order in incurring costs defending her role as a trustee. 104The Present Trustees further maintain that if Mrs Juul had sought an Re Beddoe order before expending the costs of appeals, a Court may have characterised this case as a "beneficiaries dispute" and totally prevented her from obtaining reimbursement of any of her costs out of the estate, whether she won or lost. But this point quite misreads established authority. To the extent that the authority that the Present Trustees rely upon holds that in a beneficiaries dispute "costs should follow the event and not come out of the fund" (see for example, McDonald and others v Horn and others [1995] 1 All ER 961, at 972 and Williams v Jones (1886) 34 Ch D 120) it is concerned with the costs of plaintiff beneficiaries or the burden trustees of costs before they have been found successful in the litigation. A trustee successfully defending litigation as a trustee will be entitled to the trustee's costs out of the trust fund. 105And although the High Court has said in clear terms that "a trustee who is sued should take no step in defence of the suit without first obtaining judicial advice as to whether it is proper to defend the proceedings: Macedonian Orthodox at [74], (2008) 237 CLR 66, at 94 [74], this in my view is not to be read as overturning existing authority that would allow indemnity to successful trustees after the conclusion of litigation. 106Mrs Juul not acting for her own benefit. The Present Trustees submit that in conducting her appeal from Macready AsJ's judgments that Mrs Juul was acting for her own benefit. 107Established authority is the answer to this point. As Jessel MR explained in Walter v Woodbridge (1878) 7 Ch D 504, where an action, brought against a trustee in respect of the trust estate, "is defended by the trustee, not for his own benefit, but for the benefit of the trust estate, he is entitled to indemnity". In this statement of principle, the words, "not for his own benefit but for the benefit of the trust estate" are words clarifying that the action is defended by the trustee, as trustee: In re Spurling's Will Trusts, at 933 B-C. The relevant benefit to the estate does not have to be a pecuniary benefit and may include successfully defending a suit for breach of trust on the ground that the trust had been properly and prudently administered: Barnes at p 275-6 and 279, per Williams J. This is consistent with the broader principle that a trustee sued by beneficiaries who complain of some act or omission by the trustee is entitled to defend his or her conduct as an incident of his administration of the estate: In re Llewellin; Llewellin v Williams (1887) 37 Ch D 317 at 327. To the extent that Barrett J (as his Honour then was) might be thought to be speaking to the contrary of this reasoning in Re Australian Pipeline Limited [2006] NSWSC 1316 at [25], his Honour had not been referred to the passages from Barnes identified here. 108A trustee unsuccessfully defending an action by all beneficiaries for the trustee to resign as trustee is an example of a trustee representing the trustee's own interests and not those of the trust estate, and in such a case the trustee's interests do not coincide with the interests of the trust estate, so the trustee should personally pay the costs of the action: Miller v Cameron (1936) 54 CLR 572, at 579 per Latham CJ. But that is not this case. 109Here Mrs Juul successfully contended that she and her co-trustee had not been in default as trustees by not pursuing legal action against her and Mr Juul and in that sense had properly and prudently administered the estate. Her conduct was for the benefit of the estate. It prevented the estate from wasting further funds on fruitless litigation against her and her husband. And it has not been demonstrated that she has otherwise acted unreasonably so as to disentitle her from indemnity. 110Of course as Basten JA pointed out in the Court of Appeal, had the finding been otherwise and a prima facie case made out that one of the executors, Mrs Juul, owed money to the estate, the proper course would have been to replace her as co-executor so that an independent executor could consider whether any money was actually owed to the estate: Juul v Northey [2010] NSWCA 211 at [251]. But the Court of Appeal found that no prima facie case of this kind was made out. 111In the result on question (c): (1) Mrs Juul's failure to obtain a Re Beddoe order is not unreasonable conduct disentitling her to indemnity for her legal costs from the estate and she has not otherwise acted unreasonably so as to disentitle her from indemnity; and (2) by incurring costs to defeat Mr Henry Northey's litigation against her she has not acted in substance for her own benefit rather than for the benefit of the estate. (d) Should Mrs Juul have Sought an Order for Reimbursement in the Court of Appeal? 112The non-Juul parties argue that as Mrs Juul did not seek an order for reimbursement out of the estate from the Court of Appeal, it is now too late for her to seek such an order. In response Mrs Juul argues that now is the appropriate time for her to seek a reimbursement order. 113More fully elaborated, the Present Trustees' argument is that Mrs Juul made no application in the Court of Appeal for an indemnity out of the estate for her costs and as a result none was awarded. The Present Trustees submit that this omission is remarkable as at least some of the Court of Appeal's costs orders in Mrs Juul's favour could then and there have been awarded out of the estate but were not. The Present Trustees conclude that the orders made in the Court of Appeal "make clear that [Mrs] Juul was left to recover the costs from [Mr Henry Northey] and [Mr James Northey] and the estate without recourse to the trust fund". 114Indemnity question already decided against Mrs Juul? To the extent this submission contends that the Court of Appeal has decided that Mrs Juul should be left "without recourse to the trust fund" in my judgment it misreads the Court of Appeal's decision. In Juul v Northey [2010] NSWCA 211, the Court of Appeal did not decide: whether or not Mrs Juul should have an indemnity for any of her costs out of the estate; or, against Mrs Juul having the benefit of the indemnity she now claims - that question is still undecided. The Court of Appeal (at [250]): vacated Macready AsJ's orders, on the appeal, and ordered Mr Henry Northey to pay Mrs Juul's and Mr James Northey's costs of the Summons and of the appeal itself; and on the cross appeal, ordered Mr Henry Northey to pay Mrs Juul's costs. The Court of Appeal certainly ordered that the Present Trustees were entitled to payment of their costs of the appeal and of the cross appeal out of the estate on the indemnity basis. The Present Trustees were not trustees at the time of the original proceedings, so they had not incurred any costs at first instance. But neither these orders, nor the essential reasoning of the Court of Appeal (McColl JA [180] to [250] and Basten JA [251] to [259]) indicates that the Court of Appeal was ever asked to consider the question of Mrs Juul's reimbursement of her costs from the estate, the issue now before the Court. 115Deciding the indemnity question now. As this issue has not already been decided against Mrs Juul, the next question becomes whether there is any other reason why it should not be decided now. The Present Trustees and Mr Henry Northey argue that Mrs Juul is now precluded from seeking costs out of the estate because she did not seek them in the Court of appeal. 116Mrs Juul's answer to this submission is persuasive. She points out that her claim to reimbursement from the estate is not a claim for a costs order that necessarily has to be decided at the same time as the costs orders made inter partes in the contentious part of the proceedings, at first instance, in the Court of Appeal or in the High Court. Mrs Juul is correct in so far as she submits that her claim to reimbursement is not strictly a costs order in the general discretion of the Court but that under UCPR r 42.25(1) it is an entitlement for persons litigating in the capacity of trustees, which entitlement may nevertheless be subject to disallowance UCPR r 42.25(2)(a) or (b), if she were to act unreasonably, or to act for her own benefit rather than for the benefit of the estate. It has been clear for a long time that the Court's discretionary power to award costs in a suit does not mean that a litigating trustee's co-ordinate right to recoup the trustee's proper costs as "charges and expenses" from the fund is also a matter within judicial discretion - rather it is a trustee's entitlement: In re Beddoe; Downes v Cottam (1893) 1 Ch 547, at 555 (per Lindley LJ) and 650 (per Bowen LJ). Any right to recoupment of costs and expenses from the estate that Mrs Juul has, is certainly not one that must be determined at the same time as costs are awarded as between Mr Henry Northey and herself. She can now make a separate application for payment of her costs out of the estate, as she has by the motion before the Court. 117But her submission goes too far when she says that "there was no earlier occasion for the present dispute to be agitated" than the current motion; and again, "indeed, it was not apparent that there was any such dispute until after the earlier stages of the litigation concluded." In my judgment this issue could have been agitated in the Court of Appeal and was certainly an issue within her reasonable foresight when the Court of Appeal proceedings were underway: Mrs Juul must have reasonably anticipated that she would be likely to make this claim, if she were successful in the Court of Appeal. These parties were already fighting about almost everything else - so a contest about this question was on the cards. 118Mrs Juul explains her decision to bring her present motion at this time after the Court of Appeal proceedings also on the basis that not all the beneficiaries were joined to the earlier proceedings. But the present motion is being determined with the same parties as were previously joined to the proceedings, so want of parties is not a persuasive explanation for delay. 119By this motion Mrs Juul has established her entitlement to indemnity from the estate for the costs in the litigation at first instance in the Court of Appeal and in the High Court as her charges and expenses. But though successful in this motion, she could have saved some costs by making this application in the Court of Appeal, which may have been able to deal with it at the same time as the other issues. In those circumstances not all Mrs Juul's costs of these motions can be said to be reasonably incurred or to be incidental to her administration of the estate. Given there are two motions before the Court and only one of them (Mrs Juul's motion) could have been dealt with in the Court of Appeal, the Court will not permit her to recover more than two thirds of her costs of these motions against the estate. This should be reflected in the form of final orders. I am not otherwise persuaded of any of the arguments put against Mrs Juul that she has been guilty of unacceptable delay. (e) What Costs should be Reimbursed? 120Mrs Juul claims reimbursement of both legal costs and financial costs. The recovery of her legal costs and related expenses is well understood and has been discussed under the earlier questions. But an additional question separately debated in submissions was as follows: if Mrs Juul is entitled to be reimbursed for her legal costs from the estate, whether her financial costs associated with meeting those legal costs from time to time may also be recouped from the estate under the doctrine of trustee's reimbursement? 121These financial expenses were a considerable part of Mrs Juul's claim. Some of them are yet to be fully assessed. Mrs Juul adduced evidence of her incurring expenses associated with borrowing money and selling her principal residence to meet her legal expenses. The expenses she claimed were substantial. 122Mrs Juul submitted that any consequential financial expenses she has incurred could be characterised as "unauthorised expenses". A trustee is entitled to an indemnity for unauthorised expenses if they were made in good faith (that is honestly) and that the incurring of the expenses benefited the estate: Fitzwood Pty Limited v Unique Goal Pty Limited (In Liquidation) (2001) 188 ALR 566 at [150] - [152]. And as indicated the relevant benefit to the estate does not have to be a pecuniary benefit and may include successfully defending a suit for breach of trust on the ground that the trust had been properly and prudently administered: Barnes at p275-6 and 279. 123Precisely how Mrs Juul funded her litigation to vindicate her conduct as a trustee were matters for her own individual financial and forensic choices. The legal costs Mrs Juul incurred may be treated as the charges and expenses of a trustee who has successfully defended litigation and may be reimbursed from the estate as incidental to her administration. But it is difficult to see how her personal financial costs can also readily be said to be incidental to her administration. Whether Mrs Juul should sell real estate or borrow at particular rates of interest to support her choice to maintain her defence as trustee and then to appeal in substance means she as trustee is seeking to recover the financial cost of making what are in substance advances to the estate. A trustee financing the estate in this way without prior approval cannot readily be described as incidental aspect of estate administration. Moreover, UCPR r 42.25 (1) itself speaks of a trustee's entitlement to "his or her costs in the proceedings" and does not itself authorise the recovery of more remote financial costs. 124And if Mrs Juul had brought her claim to reimbursement from the estate in the Court of Appeal, given the result of these present motions, it is likely that she would have been permitted some reimbursement out of the estate before the High Court special leave application. Had she obtained reimbursement in the Court of Appeal, at least some of her financial costs from that time could have been avoided and she may perhaps have had access to Mr Henry and Mr James Northey's shares of the estate as immediate sources of funds (see question (g) below). (f) Should any Reimbursement be Conditional? 125The Present Trustees submit that Mrs Juul should not be entitled to recover any costs from the estate until she has sought assessment of the costs orders in her favour and that recovery of those costs, as assessed, from Mr Henry Northey (and Mr James Northey who had an order for costs made against him on the cross-appeal) has been attempted and failed. Mrs Juul argues that such a condition should not be imposed on any order allowing her reimbursement out of the estate. 126Mr Henry Northey submits that whatever may have been ordered in Barnes, this case differs from Barnes: here Mrs Juul has neither attempted to have the various costs orders in her favour assessed, nor to have them paid by the persons primarily liable, Mr Henry Northey and Mr James Northey; and in Barnes the application was made for indemnity out of the estate only "after the plaintiffs had not paid" an inter parties costs order: Barnes, at 268. 127The Present Trustees take up a similar point. They argue that any right to indemnity is limited to the difference between Mrs Juul's liability for costs and the costs she actually recovers after costs assessment. The Present Trustees submit that Mrs Juul must first seek to have the costs orders referred for assessment and then to have any resulting judgment for costs paid. Once she establishes she has taken these steps and failed to achieve recovery her right of indemnity is said to arise. 128Both legislation and authority support the availability of orders for the conditional reimbursement of trustees from a trust fund. First, UCPR r 42.25 (1) itself provides direct authority for such conditional reimbursement. UCPR r 42.25 (1) specifically directs itself to that class of trustee's costs that are generated when the trustee has "been a party to proceedings". And for that special class of costs the very words of UCPR r 42.25 (1), "a person...in the capacity of trustee... is entitled to be paid...costs in the proceedings, insofar as they are not paid by any other person, out of the fund held by the trustee" (emphasis added) contemplate that an order may be made conditioned on a failure to recover the costs from the unsuccessful party, who is primarily liable to meet those costs orders. 129Secondly, this is consistent with authority. Orders to this effect were made in Barnes (at p281) - see below; a case in which Starke J thought that the costs in the existing costs judgment in the trustees favour in the previous action (National Trustees Executors and Agency Co v Dwyer (1940) 63 CLR 1) "are not it seems likely to be paid in full owing to the want of means of the plaintiffs in the action". And the English Order 62 r6 (2), the rule on which UCPR, r 42.25 is modelled, provides for a person who has been a party to proceedings in the capacity of trustee may have costs out of the fund "in so far as they are not recovered from or paid by any other person", and orders to that effect have also been made in England: Williams v Jones (1886) 34 Ch D at 120. 130Some relevant considerations. Should a conditional reimbursement order be made here? If so, what kind of order should be made? Several competing considerations are in play when answering these questions. 131First, it is to be noted that Barnes was not a case where the executors/applicants had definitively proved that there has been a failure to pay the costs ordered in their favour. Rather Starke J explained (at p 275) that the costs awarded to the executors "are not, it seems, likely to be paid in full owing to the want of means of the plaintiffs in the action". The High Court held the executors entitled to the indemnity essentially after the inconvenience of enforcing the costs orders was established. The High Court did not say in Barnes that the trustee was required to recover as much of their costs as possible seeking the balance from the estate. 132Secondly, the UCPR r 42.25 (1) warrant allowing a trustee's reimbursement for litigation costs from the estate to be made conditional on the trustee's failure to enforce existing costs orders against the party primarily liable, serves a desirable end in cases such as the present, where there has been a long course of hostile litigation between estate beneficiaries. It allows the Court to spare the estate, to the extent possible, from collateral damage from these hostilities, by requiring the successful trustee first to attempt recovery from the persons principally responsible for the litigation. The Present Trustees submit with considerable force that the four children of Mrs Northey who have not participated in this litigation should not, if possible, have to pay for any part of it, and that all litigating beneficiaries should have to show that they have exhausted their other remedies before recovering their costs from the estate. 133Thirdly and on the other hand, Mrs Juul says that she should not now be put to the expense of a contested costs assessment. She submits, also with considerable force on the basis of evidence that I accept that: she cannot afford an assessment; it will further delay the long delayed distribution of the estate; and, that she should not have to fund such an assessment from her own resources, as she was a co-trustee defending herself in the litigation. 134Finally in my judgment, the trustee's entitlement described in the words of UCPR r 42.25 (1), to be paid costs is simply one, "in so far as they are not paid by any other person" [emphasis added]. These words do not prescribe any more than that the costs be "not paid" by another person. The provision does not prescribe what matters must be established before it may be determined that the costs are "not paid" by another. There is for example: no requirement as to what efforts to recover the costs have to be pursued; nor, any requirement that the costs are not recoverable under any circumstances, due to the insolvency of the person liable to pay costs. 135To this extent UCPR r 42.25 (1) may be somewhat broader than the position at general law, although UCPR r 42.25(1) has been said in substance to be reflective of the general law: Bovaird v Frost [2009] NSWSC 917 at [28]. The object of an order such as the one the High Court made in Barnes (at p281) was, in the words of Williams J (at p280), to "provide that the trustees should recover as much [of] their costs as possible under this order in the first instance and that, in so far as they are not recovered thereunder, the trustees should be authorised to retain them as between solicitor and client...out of the shares...of the...beneficiaries". The order made in Barnes (at p281) assumed that the costs in question have not only, not been recovered but are not recoverable from the object of the costs order: the order was that the costs of the litigation be paid out of the estate "so far as they are not recoverable from the plaintiffs...under the order for costs" [emphasis added]. 136It is sufficient in my judgment, for a trustee seeking to satisfy UCPR r 42.25 (1) to establish the trustee's entitlement to be paid costs out of the estate, for the trustee to show that the trustee's bill of costs, whether in taxable form or not, has been presented to the party against whom the costs order was made and that after a reasonable time some part of the amount of the bill of costs has not been satisfied. There may be some circumstances in which more than this is required: for example, if on the face of the bill of costs it is plainly unreasonable or excessive or has been issued partly in respect of legal work not related to the administration of the trust. 137Mrs Juul's situation. But I accept that Mrs Juul, financially exhausted by this litigation cannot readily afford to put funds aside for a costs assessment, although make no findings about her overall wealth. The evidence strongly suggests that a rule of the kind the non-Juul parties propose would place a significant practical obstacle in the path of Mrs Juul's exercise of any right of indemnity out of the estate. I accept that Mr Henry Northey has unilaterally borrowed and not repaid a sum of $21,005.00 which he held on trust for the Present Trustees, that he cannot immediately pay Mrs Juul's costs and that he is still paying off an $80,000 loan he raised to pay his own costs of the special leave application in the High Court. And I accept that James Northey has for some time been in such poor financial position that he has refused to move out of his self accommodation at the Collaroy property; he is not paying any rent, let alone a market rent for his occupation of estate property. Added to this picture, the litigious history of some members of this family gives a sound basis to infer that any attempted costs recovery against Henry or James would provide a forum for new and hostile legal adventures. 138Why should Mrs Juul be denied an otherwise available right of indemnity from the estate because fortuitously she does not have the resources to prosecute her costs orders any further? After all, if she were still the trustee, her success in the Court of Appeal would establish her entitlement to an indemnity for her costs from the estate. She would then as trustee be in a position use the estate's resources to take judicial advice as to whether it is in the economic interests of the estate to further deploy the estate's resources in trying to recoup the costs from Mr Henry Northey. It is difficult in principle to see why Mrs Juul should be in a worse position merely because she has retired as trustee. 139What is to be done? The Civil Procedure Act 2005 was passed the same year Macready AsJ conducted the wilful default hearing, declaring in section 56 the objective of facilitating the just quick and cheap resolution of the real issues in dispute in proceedings. But nine years later many of the real costs issues and entitlements to distribution for this estate are still unresolved. Something must be done to give as much certainty and finality to the parties as possible with a minimum of further procedural complication. 140A shorter route to a distribution. To reduce the scope for further disputation among these beneficiaries the Court will make directions to satisfy both the Court's interpretation of UCPR r 42.25 (1) and what may perhaps be a more demanding test of recoverability at general law. These directions will require Mrs Juul to show that the costs are not recoverable from Mr Henry Northey. This should not be difficult. 141Mr Henry Northey's submissions take a somewhat artificial position on this issue: that Mrs Juul must establish what she has not yet established, namely that he, Mr Henry Northey cannot satisfy the costs order she has against him in the proceedings. He points to the lack of evidence of his incapacity to pay the costs order. On the evidence, given that he has borrowed and not repaid a loan of $80,000 to fund his costs of appealing to the High Court, there is probably no real dispute that he cannot pay the costs orders. But the Court will nevertheless give him a brief opportunity to show otherwise. In the orders and directions below he will be directed that if he were to contend that he is able to pay the costs orders against him, he should file a verified current asset and liability statement on the strength of which he submits he can now pay these costs. 142Should there be an assessment of these costs? The history of this case indicates the Court should not send these parties into any other forum in which they can engage procedural apparatus against one another. The non-litigious beneficiaries of Mrs Northey's estate should not be expected to await the distribution of this estate until after contested costs assessment has taken place. The Court has power under Civil Procedure Act s 98(4)(c) before costs are referred for assessment to make an order that a specified gross sum be paid instead of costs. The Court will make such an order when a costs assessment would be likely to be protracted and expensive and especially where the party obliged to pay the costs would be unlikely to do so: Harrison v Schipp (No 2) [2002] NSWCA 213; (2002) 54 NSWLR 738, at [21]. The circumstances of this case well justify the making of such an order, so as to serve the objectives of Civil Procedure Act s 56. Moreover, Courts of Equity have a long-standing practice of fixing a reasonable amount for costs in order to expedite estate administration after earlier litigation. Just such a course was taken in Re Beddoe (at p559) itself. The Court will now direct this course of its own motion. Once a Civil Procedure Act, s 98(4)(c) order is made, the parties will know exactly what costs are recoverable both against Mr Henry Northey and from the estate. A final distribution should then be possible in the near term. 143Thus, in the orders and directions the Court will direct: (1) Mrs Juul to serve the final bill of costs she wishes to tender on a Civil Procedure Act s 98(4)(c) application for a specified gross sum instead of costs; and, (2) the other parties and Mrs Juul to put on submissions as to what gross sum costs order should be made. The Court does not contemplate that either party will need to file any further evidence on this issue. 144If the parties would all by agreement prefer to have a mutually acceptable qualified costs assessor as a Court-appointed expert to undertake the evaluation of this gross sum instead of assessed costs, then they should put the name of the person forward together with an appropriate form of consent order for the Court to make in chambers. Again if the parties would prefer this particular issue to be mediated then the Court may be minded to make orders in chambers for the holding of a mediation under Civil Procedure Act s 26. (g) Bearing the Burden of Reimbursement? 145Mrs Juul submits that if her costs were to be reimbursed out of the estate, the shares in the estate of Mr Henry Northey and Mr James Northey should first bear the burden of those costs. Mr Henry Northey opposes making such an order. 146First exhausting entitlements of unsuccessful beneficiaries. That the unsuccessful litigating beneficiaries should bear the burden of Mrs Juul's reimbursement of her costs before the non-litigating beneficiaries in the present circumstances is consistent with authority and is appropriate among the beneficiaries of Mrs Northey's estate. 147The High Court made a similar order in Barnes. There some nine of thirty-seven residuary beneficiaries were parties to the primary litigation. Williams J explained in Barnes (at 279-280) the logic for such an order, "...the indemnity must be given effect to in such a way as to make the burden fall upon the beneficiaries equitably, having regard to the circumstances under which the costs, charges and expenses were incurred. Here they were incurred as a result of the action of nine out of the thirty-seven beneficiaries, so that the shares of these beneficiaries should be exhausted before any part of the burden is placed on the twenty eight". The High Court's order reflected this reasoning, providing (at p 281) that the costs not recoverable against the plaintiffs in the earlier suit "may be retained out of the estate...first out of the shares therein of the [nine] plaintiffs [in the current suit] and when these shares have been exhausted, out of the balance of the estate". Williams J clearly considered that the beneficiaries who had caused unsuccessful litigation against the trustees should pay the trustees' costs of that litigation out of their shares in the estate because of their actions. 148Similar considerations to those in Barnes weigh relevantly here against Mr Henry Northey and to a lesser extent against Mr James Northey, and support the conclusion that their shares should first be exhausted before the burden of costs falls on other parts of this estate. 149That Mr Henry Northey and Mr James Northey were unsuccessful litigants against Mrs Juul is a sufficient basis for making the same kind of order as was made in Barnes for the first exhaustion of their shares in the estate. But Mrs Juul advances other reasons why orders should be made for first exhausting the shares of Mr Henry Northey and Mr James Northey: the proceedings were an abuse of process launched for an ulterior purpose; the claims were fundamentally misconceived; Mr Henry Northey advanced a false set of the orders said to have been made by Macready AsJ before seeking special leave to appeal to the High Court; and, the case involved something of a guessing-game about a suitable appeal to the Court of Appeal. I do not find it necessary to make findings about any of these various allegations, and whether they add substance to the conclusion that Mr Henry Northey and Mrs James Northey's share of the estate should first bear the burden of the costs recoupment. 150But one of Mrs Juul's other contentions does assist her case for orders, for recoupment of at least a part of her costs first against Mr Henry Northey's share. Mrs Juul's expenses included costs incurred in responding to a caveat that Mr Henry Northey lodged against the title of her residential real property, a plainly unsupportable caveat. Macready AsJ delivered his costs and interest judgment of 13 June 2008, which absent final costs orders, nevertheless made clear that Mr Henry Northey would have the benefit of a costs order at first instance. Only 3 days later, on 16 June Mr Henry Northey lodged a caveat against the title of Mrs Juul's own home, a property which had never been the subject of this litigation. The basis on which Mr Henry Northey claimed a caveatable interest in this property of Mrs Juul is obscure, and made no clearer by his form of caveat which simply claimed in wholly objectionable form "An equitable interest" by virtue of the facts stated of "moneys due and owing pursuant to an order of the Supreme Court dated 13 June 2008 in [the costs judgment]". It was not until 23 July 2008 that any order was actually made against Mrs Juul and Mr Henry Northey to pay a money sum ($165,493.72) plus interest (of $109,203.18), together with an order for costs. At the same time the Present Trustees were appointed. Whether the proceedings had been properly constituted or not, the sums so ordered to be paid were ordered to be paid to the Present Trustees, not to Mr Henry Northey. Thus, there was no proper basis for Mr Henry Northey to lodge this caveat and it did not disclose a caveatable interest. Mr Henry Northey's precipitate actions in lodging this caveat would at least justify an order that his share of the estate first bear Mrs Juul's costs associated with this caveat. 151Mr James Northey. Should Mr James Northey's share also rateably first bear Mrs Juul's charges and expenses with Mr Henry Northey's share? Although Mr James Northey did not appear or put submissions, there are several considerations in his favour on this issue. But the answer to this question is nevertheless against him. 152It is true Mr James Northey was a co-defendant/co-trustee with Mrs Juul during 2004 and until the wilful default judgment in September 2005. But he supported Mr Henry Northey against Mrs Juul for a much lengthier period after that, when a very substantial part of Mrs Juul's costs were incurred. 153So the Court will order that Mr Henry Northey and Mr James Northey's shares will be first exhausted before any of the other beneficiaries should have to bear any of her expenses and charges. 154A question exists as to whether Mr James Northey might claim any similar costs and charges for this early period as co-trustee with Mrs Juul. But he has not sought to appear to put such a claim, which in any event would probably not be very large compared to Mrs Juul's claim, so the issue can be ignored. 155Mrs Juul and the non-litigating beneficiaries. It is proper therefore for the shares of the other five beneficiaries (Mrs Juul herself and the four non-litigating beneficiaries) rateably to bear the balance of Mrs Juul's expenses and charges. The non-litigating beneficiaries other than Mrs Juul may suffer a sense of injustice at this outcome, as they do not appear to have promoted this unfortunate contest in any way. The same concern was put to Ungoed-Thomas J in Spurling (at 936H), "It was suggested that it might be hard on beneficiaries with limited interests if the trust fund in which they were interested were liable to the trustees' costs in successfully defending an action for breach of trust brought by other beneficiaries." Ungoed-Thomas J responded to the concern (at p 936H) with an answer, which is instructive for the four non-litigating beneficiaries in this case, "The short answer to this seems to me to be that it would not be as hard as on the trustees who take no beneficial interest in the settlor's bounty but administer it in the interest of all the beneficiaries; and, in so far as they are themselves beneficiaries, they are in the same position in respect of the liability of the trust fund as other beneficiaries: and, again, that they are entitled to their costs as a matter of contract." 156One footnote to Mrs Juul's motion about costs is necessary. The Present Trustees have dealt with this motion as a necessary part of the administration of the estate and should have their costs of the motion out of the estate on the trustee basis. Whether or not an order for costs should be made against Mr Henry Northey or whether he should be ordered to pay Mrs Juul's costs may perhaps be academic. But if not, it may be quickly dealt with when the Court is finalising minutes of the orders arising from this judgment. The Present Trustees' Motion 157The Present Trustees also seek the Court's opinion advice or direction under Trustee Act s 63 as to whether the Court will be justified in distributing the residual estate on seven discrete bases of assumption. This judgment now deals with each of those bases of assumption in the order that they are found in the present trustees' notice of motion. 158The factual matters the Court is asked to consider on this s 63 application must be seen in their proper context. On the Present Trustees' motion the Court is giving advice upon certain assumptions of fact and not deciding contested issues of fact in dispute between the parties. 159The relevant principles describing the Court's approach on such applications may be shortly stated. An application for judicial advice is a generally not an appropriate vehicle by which to settle disputes between parties to a trust: Hartigan Nominees Ltd v Rydge (1992) 29 NSWLR 405, at 440 and Macedonian Orthodox at [99]. It is undesirable that the rights of parties should depend to any degree upon facts, which have not been established in the normal manner: Harrison v Mills (1976) 1 NSWLR 42, at 46B and Macedonian Orthodox at [99]. In a judicial advice application the Court is essentially engaged solely in determining what ought to be done in the best interests of the trust estate and not in determining the rights of adversarial parties: Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198, at 201 and Macedonian Orthodox at [125]. It may sometimes be necessary to determine the rights of adversarial parties on a Trustee Act, s 63 application "to the limited extent necessary to ensure the protection of the trust estate": and Macedonian Orthodox at [125]. The proper remedy for a beneficiary who wishes to resolve contested issues concerning an estate is take proceedings for the administration of the trust and as to the rights of the trustees and the beneficiaries: Harrison v Mills (1976) 1 NSWLR 42, at 46E. 160A person on whom notice is served in accordance with Trustee Act s 63(8) is bound by any advice or order given under that section. But such advice will be based on the accuracy of the facts stated by the trustees, and if the facts are not accurate and if the trustee acts in accordance with the advice the trustee is not protected by s 63 but if they are accurately stated the trustee is protected: Harrison v Mills (1976) 1 NSWLR 42, at 45E. 161The Court is not deciding any disputed matter of fact among these parties on this Trustee Act s 63 application but is considering whether the Present Trustees are justified in proceeding on certain assumed facts. The submissions of the parties did not always advert to this important distinction. For example, the Court was invited to decide some contested issues of fact, especially with respect to the rent that should be charged to Mr James Northey for his occupation of estate property. The Court was not presented with an agreed statement of facts. But in accordance with orthodox principle and in the absence of agreed facts the approach that the Court must take will be to advise on the basis of certain assumptions that the factual material supports as reasonable and to require the parties to bring proceedings for the administration of the estate with respect to contested matters. 162The present Trustees submit seven questions for the Court's opinion and advice, each of which will now be dealt with in turn. (i)Henry's alleged expenses incurred during 2006 to 2008 163Mrs Juul adopts the present trustees' position on this issue. 164The Present Trustees have received a claim from Henry Northey for estate expenses allegedly incurred by him in the period before the Collaroy property was sold. The Present Trustees seek advice whether they would be justified in distributing the residual estate without meeting these claimed liabilities. 165Mr Henry Northey's submissions say that these expenses amount to $8,825,75 although the documentary evidence tendered in support would justify a higher figure of $9,705.87, and perhaps even $10,555. 166The claim is supported by a letter from a solicitor acting for Mr Henry Northey on 28 June 2010. This claim differs from that made by Mrs Juul in that Mr Henry Northey was never a trustee of the estate, the payments he made did not go through solicitors acting for the estate about the time that the payments changed go through to were not processed. To that extent they have a degree of uncertainty about them which is not possessed by Mrs Juul's claims, which are discussed below. 167Nevertheless, there is an obvious credibility in most of Mr Henry Northey's claims. Some of the $9,705.87 claimed relates to council rates and building insurance and the largest figure is for repairs and maintenance. Moreover, there are real estate agent's fees which may be inferred related to the ultimate sale of the property. 168One of the misfortunes of the delay in this case is that documentation has been lost and Mr Henry Northey is not to be criticised for not being able to provide vouchers to the Present Trustees for all the expenditure. There is no doubt that before it was sold the Collaroy property had to have its council rates paid and building insurance needed to be taken out and it needed to be kept in a reasonable state of repair. I am prepared to infer that a figure of $6,500 would be properly justified from this list of payments as being related to estate expenditure and the Present Trustees are advised that they should only distribute from the estate after making an allowance of that amount to Mr Henry Northey in respect of these liabilities. (ii)James' alleged expenses incurred during 2006 to 2008 169Mrs Juul adopts the present trustees' position on this issue. 170A similar issue of claimed reimbursement for Mr James Northey arises for the period July 2006 to July 2008, a period after he had retired as Mrs Juul's co-trustee. He claims an amount of $7,255.72 for this period. Apart from the current expenditure that would be explained by his occupation of the property such as water rates, much of the expenditure appears to be building insurance, council rates and maintenance expenses. I would be prepared on balance, on the same logic that applied to Mr Henry Northey's claim to allow $5,000 for this expenditure to Mr James Northey. The Present Trustees would be justified in distributing the residual estate of the deceased on the basis that a liability of $5,000 exists to Mr James Northey, for expenses incurred by him during the period 2006 to 2008. (iii)James is liable to repay (a) $6,669.56 and (b) $11,640.00 171As to (a), Mrs Juul contends the sum of $6,669.56, is money paid to the then trustees' solicitor for services rendered to them in that capacity. She contends that Mr James Northey should not be liable to repay (or suffer a set off for) this sum, for the same reason that Mrs Juul is not liable to repay (or suffer a set off for) any such sum. 172Mr James Northey gets the benefit of the Court's findings on Mrs Juul's motion for indemnity out of the estate, at least to the extent of this payment of $6,669.56. This sum appears to be in relation to legal costs for services rendered to him as a co-trustee of the estate of Mrs Juul. The same logic as Mrs Juul's motion gives her the rights of an indemnity out of the estate, works also now for Mr James Northey as Mrs Juul's co-trustee at the time. Similar payments made to their solicitors acting for Mrs Juul question (iv)(c) and (d) below should be treated consistently with the disposition of Mrs Juul's motion, and allowed to Mr James Northey. 173As to (b), the sum of $11,640 that the Present Trustees seek to have Mr James Northey repay raises two issues: the quantum claimed and whether Mr James Northey has any liability to repay this amount. 174This amount relates to the rent of the Collaroy property, Mrs Northey's old house. It is not contested for a period of time Mr James Northey occupied those premises. Mr Henry Northey gave evidence that an agreement was made in about late 2006 with Mr James Northey that Mr James Northey could occupy the premises for $400 per week. Mrs Juul however says that a market appraisal for the rent of the property is more like $550 per week. 175But there is also dispute about the length of time Mr James Northey occupied the property. Mrs Juul says that the period went from December 2005 until January 2009 and possibly longer into 2009. Certainly Mr Henry Northey made an admission that Mr James Northey was there as late as 21 January 2009. 176Mr Henry Northey says that after he made a rental agreement with Mr James Northey a bank account was opened into which the $400 per week was paid and the rent money was used then to maintain the house. The last rent that appears to come into this account in March 2008. Of course, neither Mr James Northey or Mr Henry Northey were trustees of the estate at this time. 177Matters are complicated by the fact that Mr Henry Northey accepts that he borrowed $21,005 from this unauthorised estate rental account, which he used for personal purpose and he acknowledges that he is indebted to the estate in respect of that sum. 178But the Present Trustees are prepared to accept as a compromise that the net amount owing by Mr James Northey is $11,640, after some credit is given to Mr James Northey for expenditure on the house whilst he was in occupation. 179But Mrs Juul says that Mr James Northey owes the estate a figure more like $81,000, being an occupation rent of $500 per week for a little over 3 years from June 2006 to July 2009. This is a bare outline only of the rental issues. 180Mrs Juul contends that Mr James Northey should repay this alleged debt either in cash or by way of set off against any money payable to him. Her contention is that as Mr James Northey was one of the trustees of the estate his use of the estate house for his own accommodation, without the informed consent of all beneficiaries was a breach of his fiduciary duty. Moreover, she contends the record established that both Mr Henry Northey and Mr James Northey have understated the period of their occupation of the house and its rental value. 181The Court cannot resolve these strongly contested issues in the context of a Trustee Act, s 63 application. The proceedings are not properly constituted to resolve questions Mrs Juul raises: of how long Mr James Northey was in occupation; of what is an appropriate rent for the Collaroy property; of what expenditure Mr James Northey undertook on the Collaroy property; and, whether a proper account has been given of the operation of the rental account of the property. In Harrison v Mills & Ors in similar circumstances, Needham J dismissed a summons for Trustee Act, s 63 advice and suggested that the parties take appropriate proceedings for the administration of the trust. As this is only one component of the advice the trustees seek, all the Court will do here is not to answer this question. 182But in order to bring these proceedings to finality, given that the trustees, who after all are independent of the beneficiaries, have reached a view $11,640 is a reasonable compromise of this claim, a practical course suggests itself. If Mrs Juul wishes to question this compromise it should not be done at this stage at the estate's expense. If she wishes to put on a summons for administration of the estate on this issue and take a risk as to costs, if she fails to challenge this compromise then she can have that opportunity. But she must do so within 28 days. In the absence of her taking that course and taking her own risk as to costs, there would in fact be no challenge to what after all is the trustee's judgment about what is an appropriate compromise from a morass of contested facts. The orders settled at the end of these proceedings should give her that opportunity. (iv)Mrs Juul's liability to repay the sum of $18,537.32 183This issue concerns whether Mrs Juul should repay to the estate the total amount of four withdrawals made from the deceased's bank accounts between April 2004 and May 2005. In 2004 and 2005 the deceased's bank accounts were administered by Mrs Juul and her co-trustee through their solicitor's trust account. The following four withdrawals were made from that fund between 5 April 2004 and 6 May 2005, and the descriptions here accord with the entries in the solicitors' trust account ledger of Messrs Wood, Marshall and Williams: (a) 5 April 2004, reimbursement (of estate) expenses - $4,313.20; (b) 1 September 2004, reimbursement (of estate) expenses - $7,776.41 (c) 2 December 2004, payment of solicitor's account - $9,596.30; and (d) 6 May 2005, payment of solicitor's account - $3,299.12. 184The Present Trustees contend that Mrs Juul should repay to the estate the whole of the first two of these payments and half of the second two. Mrs Juul resists their contention. 185The payments (c) and (d) from the solicitor's account on 2 December 2004 ($9,596.30) and 6 May 2005 ($3,299.12) are governed by the Court's conclusions on Mrs Juul's motion. These payments were made to Messrs Wood, Marshall and Williams, the solicitors then acting for the trustees, Mrs Juul and Mrs James Northey. These are payments for "solicitor's account[s]" by transfer of funds from the solicitors' trust account to the solicitors general account. Although the solicitors' original memoranda of fees do not appear now to be available, there is nothing persuasive to displace the inference that these amounts were paid on account of the co-trustees' then legal fees for administration of the estate. Mrs Juul is entitled to an indemnity from the estate for her liability for these costs. There is no basis for her to reimburse any part of these fees to the Present Trustees. The Present Trustees would not be justified in distributing the residual estate on the basis that Mrs Juul is liable to repay these moneys, totalling $12,895.42 to the estate. 186The other amounts on 5 April 2004 ($4,313.20) and on 1 September 2004 ($7,776.41) are not for legal fees. The contest about their reimbursement is one about the lack of supporting documentation for these expenditures. 187A number of facts may be accepted for the purposes of giving Trustee Act, s 63 advice in relation to these payments (a) and (b). The relevant facts do not appear to be in real contest. Mrs Juul no longer has any paperwork in her possession in relation to these transactions. She says that the two payments from the Messrs Wood, Marshall, Williams trust account probably followed from her handing a bundle of invoices to the firm for items of expenditure which she previously paid. Mrs Juul's evidence is that she did not hand to Messrs Wood, Marshall, Williams any invoices for reimbursement that were not related to the administration of Mrs Northey's estate. She says that any invoices that she gave to Messrs Wood, Marshall, Williams related to things that she had previously paid for the benefit for the estate. 188A little more can be said about the individual payments. As to the 5 April 2004 payment (of $4,313.20) there is some evidence that the solicitors thought that the payments were related to work done on the deceased's real estate, although Mrs Juul's recollection is that it was only towards a marble engraved headstone for the deceased, together with some household bills which had fallen due since her death. 189As to the 1 September 2004 payment, Mrs Juul long ago swore an affidavit about the expenses which made up this reimbursement. Her affidavit of 23 June 2005 lists a variety of expenses that on their face appear to have been incurred in estate administration of Mrs Northey's estate. It can be accepted as an uncontentious fact that this affidavit is now the only record that Mrs Juul can find which bears upon these expenses. 190Moreover, in a subsequent phase of these proceedings Mrs Juul made herself available for cross-examination on a further affidavit she swore on 28 November 2005 which in substance repeated the explanation of these payments which she had given on 23 June 2005. Although in that accounting Mr Henry Northey did allege that Mrs Juul was liable to repay a sum which included the $18,537.32 now in question, Mrs Juul was not cross-examined on either her affidavit of the 23 June 2005 or her affidavit of 28 November 2005. 191A number of considerations arise from these basic facts. It is unlikely that Messrs Wood, Marshall, Williams would have allowed reimbursement of expenses out of an estate trust account without some contemporaneous verification that the expenses were for estate purposes. It is not at all surprising that the primary vouchers that relate to these payments might have gone missing in the 9 years since the payments were made. That Mr Henry Northey did not opt to cross-examine Mrs Juul on her affidavits within two years of them being sworn, as would have been his entitlement, does not indicate that he had overwhelming confidence that at that time that these were not estate related payments. Now recollections are understandably dim on all sides about these matters. And finally, none of the findings of Macready AsJ or the Court of Appeal give ground for the conclusion that Mrs Juul was someone who falsified documents, was dishonest or invented imaginary claims against the estate. 192The trustees are entitled to approach these payments in my judgment on the basis that they are likely to be genuine payments for estate related purposes which were verified by competent professionals at the time, notwithstanding the lack of extant documentation to vouch for the underlying purposes of the payments. Not only is the absence of the vouchers now explicable but no other ground of suspicion falls upon the payments sufficient for the trustees to require Mrs Juul to repay these moneys to the estate. In my view the trustees would be justified in distributing the residual estate of the deceased without requiring Mrs Juul to repay to the estate the payments of 5 April 2004 of $4,313.20 and of 1 September 2004 of $7,776.41. 193Mrs Juul argued that she was not obliged to repay this amount of $18,537.32 on a number of other bases which it is now not necessary to consider. She argued, for example, that the accounting hearing covered these same payments and resulted in either a res judicata, a cause of action estoppel, an issue estoppel or an anshun estoppel. Moreover she said that these claims were statute barred or affected by laches. None of these arguments now need to be considered. (v)Henry's Costs of the April and July 2008 Motions - $4,049.50 194On 23 July 2008 Macready AsJ made orders that the parties' respective costs of Mr Henry Northey's motion of 7 April 2008 and Mrs Juul's motion of 7 July 2008 should be paid out of the assets of the estate and assessed on the trustee basis. But the trustees encountered difficulties in agreeing upon the amount of costs to be deducted from the estate with each of Mr James Northey and Mr Henry Northey and Mrs Juul. But I accept on the evidence that the estate has now been able to agree upon a figure with Mr Henry Northey for his legal costs of the motion of $4,049.50. The figure was properly supported and has been the subject of negotiation. There is no reason why the executors will not be justified in distributing the residual estate of the deceased on the basis that it is liable to pay Mr Henry Northey the agreed sum of $4,049.50. 195Mrs Juul does not make any submission on the question of whether the estate is liable to pay Henry $4,049.50. She concedes that it is a claim within the trustee's power to accept. (vi)James' costs of the 2008 April and July 2008 motions 196Mr James Northey had the benefit of the same 23 July 2008 costs order for the April and July 2008 motions, as did Mr Henry Northey and Mrs Juul. But Mr James Northey has not communicated a final bill of legal costs to the estate for his legal costs for these motions. He seems to have lost interest in the proceedings in recent times. 197Mr James Northey was legally represented by a solicitor on these motions, although not by counsel. In the absence of a memorandum of legal fees from Mr James Northey's solicitors the best that can be done is to estimate what is a reasonable amount that should be set aside to account for the legal fees that Mr James Northey probably incurred. It should be inferred in my judgment that he must have incurred some legal fees for these motions. 198The fees agreed with Mr Henry Northey are a reasonable guide to what is proper for Mr James Northey. As Mr Henry Northey's fees were a little over $4,000 in my view the Present Trustees would be justified in making an allowance in the distribution of the estate of $2,500 to Mr James Northey on account of his legal costs of these two motions and would be justified in distributing that sum to him on this account. (vii)Mrs Juul's costs of the April and July 2008 motions 199As a result of the Court's reasons on Mrs Juul's motion, she stands in a stronger position than the other parties on the question of the costs of the two 2008 notices of motion. Apart from the terms of the orders made on 23 July 2008 Mrs Juul has now successfully contended that she has a right to be indemnified by the Present Trustees for her expenses incurred in this litigation. She contends her costs in these two notices of motion are costs incurred by her in her capacity as trustee in the estate successfully defending an unmeritorious allegation of breach of trust. The Court's reasoning on Mrs Juul's motion means that her claim for reimbursement from the estate of the costs of these two 2008 notices of motion should be accepted. 200But in addition she has the benefit of the same arguments as Mr Henry Northey and Mr James Northey on this issue, as Macready AsJ also made an order in her favour on 23 July 2008 that her costs of these motions be paid out of the estate. 201The difficulty at the hearing was separating out these costs from all other costs incurred by Mrs Juul. She had not separated out these amounts during the hearing. The parties were given liberty to provide further material to the Court by 4 October 2012 to show that the quantum of these costs have been agreed. That liberty does not appear to have been taken up. But that problem of separation may no longer exist in light of the result of Mrs Juul's motion. She will be able to recover all her legal costs from this period anyway. If the parties still want to isolate these costs they can raise this matter at the time that final orders are settled. 202Costs of the Present Trustees motion. The Present Trustees should have their costs of this under Trustee Act, s 63 motion out of the estate. This part of the parties' dispute is far less akin to a beneficiaries dispute. Authority therefore indicates that both Mr Henry Northey and Mrs Juul's costs of this motion should be paid out of the estate, albeit that Mrs Juul's entitlemnt will be limited in accordance with paragraph [119] above. But if that cost outcome is to be disputed then this issue can be briefly argued when the Court settles final orders in the proceedings. Conclusion and Orders 203The result of Mrs Juul's motion is that she is entitled as a co-trustee of the estate to costs out of the estate for her successful defence of Mr Henry Northey's litigation and for her costs in the Court of Appeal and the High Court and for other costs identified in these reasons, including the costs of this motion. But for the reasons given she is not entitled to the financial and other consequential costs of her litigation as trustee. The result of the Present Trustees for advice under Trustee Act, s 63 motion has been mixed, as these reasons indicate in detail. 204In the course of these reasons, the Court has indicated that the parties should bring in short minutes of order to give effect to the Court's substantive findings. But a few procedural directions must nevertheless be made. Accordingly, the Court makes the following orders and directions: (1) The parties are directed to bring in short minutes of order to give effect to these reasons; (2) The proceedings are listed at 9.30am on Monday, 19 May 2014 for any argument about the appropriate form of final orders. (3) If the parties wish to fix another date more convenient to the parties for the making of final orders they should contact my Associate with a new agreed date this week. ********** Amendments 19 May 2014 - typo graphcal error and slip rule addition Amended paragraphs: 155,202 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 April 2014