Walker v Walker; the Estate of Ngaere Joy Walker, late of Mortdale [2016] NSWSC 92

Supreme Court New South Wales

Medium Neutral Citation: Walker v Walker; the Estate of Ngaere Joy Walker, late of Mortdale [2016] NSWSC 92 Hearing dates: 27 November 2015 Date of orders: 19 February 2016 Decision date: 19 February 2016 Jurisdiction: Equity Before: Slattery J Decision: Order that the defendant pay two sevenths of the plaintiff's costs of the proceedings. Note the agreement of the parties that the plaintiff's costs are no more than $70,000 inclusive of GST. Subject to agreement between the parties as to the quantum of costs of the plaintiff's or alternatively subject to proof and determination by the Court of his actual expenditure on legal costs if required and, the plaintiff is entitled to deduct two sevenths of his legal costs from the funds held in the defendant's solicitor's trust account. Catchwords: TRUSTS and SUCCESSION – co-executors of estate – disagreement by co-executors – application under Probate and Administration Act for the removal of one executor by the other – proceedings substantially settled subject to argument about costs – whether plaintiff would have succeeded in any event – whether either party's conduct in the proceedings was unreasonable. Legislation Cited: Civil Procedure Act 2005, s 98 (4)(c) Probate and Administration Act 1898, s 75 Cases Cited: Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194; (1993) 116 ALR 523 Bates v Messner (1967) SR (NSW) 187 Mavrideros v Mack (1998) 45 NSWLR 80 Rutter v McCusker [2008] NSWSC 269 Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624-5; 143 ALR 1 Category: Costs Parties: Plaintiff: Jonathan James Walker Defendant: Stephen Howard Walker Representation: Counsel: Plaintiff: A.M. Gruzman Defendant: M. Lawson