Warton v Yeo [2015] NSWCA 115

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Warton v Yeo [2015] NSWCA 115 Hearing dates: 3 March 2015 Decision date: 07 May 2015 Before: Basten JA at [1]; Ward JA at [22]; Emmett JA at [84] Decision: 1.The appeal is allowed. 2.Set aside the declaration made on 29 April 2014. 3.In lieu thereof, declare that, upon the proper construction of cl 6(b) of the Will of Justin Huntley Augustine Callaghan dated 25 August 1994, Mark Alexander Lamond, Gregory Charles Lamond, Vincent James Lamond, Veronica Ann Warton and David John Lamond are the "children" of the said Ailsa Josephine Lamond and entitled to an equal share of the estate referred to therein. 4.Order that the first respondent as trustee and executor of the estate of the late Justin Huntley Augustine Callaghan account to each of Mark Alexander Lamond, Gregory Charles Lamond, Vincent James Lamond, Veronica Ann Warton and David John Lamond for equal 9.76% shares of the residue of the said estate. 5.The appeal costs of the appellants, assessed on an indemnity basis be paid out of the proceeds of sale of the deceased's retirement village unit. 6.The appeal costs of each of the first and second respondents be paid out of the proceeds of sale of the deceased's retirement village unit assessed on an indemnity basis but limited to the cost of filing a submitting appearance in each case. 7.There be no variation of the costs orders made by the primary judge in respect of the costs of the proceedings at first instance. Catchwords: COSTS – appeal costs - where beneficiary filed submitting appearance but executor actively sought to uphold primary judge's construction of will – whether executor limited to costs as submitting party - where residuary estate partially distributed – part of estate from which costs to be paid