Martin v Martin [2016] NSWSC 1964

Supreme Court New South Wales

Medium Neutral Citation: Martin v Martin [2016] NSWSC 1964 Hearing dates: Wednesday, 17 February 2016 Date of orders: 17 February 2016 Decision date: 17 February 2016 Jurisdiction: Equity Before: Brereton J Decision: Plaintiffs' costs of notice of motion to be paid out of defendant's entitlement in the estate Catchwords: SUCCESSION – executors and administrators – other matters – costs of motion – where plaintiffs and defendant are executors and beneficiaries of estate – where plaintiffs sought defendant's agreement to reimbursement from estate – where defendant delays in response – held, delay was protracted and avoidable, and motion was fundamentally caused by defendant's failure to respond. Category: Costs Parties: Russell Ernest Martin (first plaintiff) Trama Ann Gartrell (second plaintiff) Wayne Oswald Martin (defendant) Representation: Counsel: B Skinner (plaintiffs) P Menadue (defendant)

Solicitors: Blackwell Short Lawyers (plaintiffs) Brennan Tipple Partners (defendant) File Number(s): 2014/00268976

Judgment (EX TEMPORE) 1. HIS HONOUR: Listed before the Court today for hearing was the plaintiffs' notice of motion filed 14 December 2015, in which they sought various orders in connection with the administration of the estate of the late Doylah Ernest Martin of which the plaintiffs Russell Ernest Martin and Trama Anne Gartrell, and the defendant Wayne Oswald Martin, are the executors. 2. The relief sought included orders which would have had the effect of permitting the administration to proceed, one way or the other, without the defendant Wayne Oswald Martin having any further function to perform, and orders approving payments from the estate to the executors Russell Ernest Martin and Trama Anne Gartrell by way of reimbursement for expenses said to have been incurred by them. The motion also sought an order for the defendant to indemnify the other executors in respect of the administration of the estate. 3. The substance of the notice of motion has now been settled, and the Court will make orders substantially in accordance with the documents entitled "Consent orders", signed by the solicitor for the plaintiff and the solicitor for the defendant, initialled by me, dated this day and placed with the papers; although I will vary their form somewhat when I pronounce those orders as some of them, I think, are not appropriate to be made, at least in that form, as orders of the Court. 4. The outstanding issue is the question of costs. The plaintiffs seek an order that their costs of the motion be paid on the ordinary basis out of the defendant's one-third share of the residuary estate. The defendant seeks that his costs be paid out of the plaintiffs' two-thirds share on the indemnity basis, or alternatively that all costs of the parties be paid out of the estate on an indemnity basis, or alternatively that each party pays their own costs. 5. At least since April 2015, the plaintiffs had been endeavouring to obtain the defendant's agreement to their reimbursement by the estate in respect of the expenses incurred over the period between April and November 2015. The motion was brought in the context that the plaintiffs had repeatedly sought that approval, and demonstrated a substantial amount of tolerance in not acting precipitously to enforce their position. It is fair to say that over that period they received no meaningful reply, except attempted justification for delayed responses. The defendant was supposedly unable to reply more speedily due to his employment as a truck driver, which was said to necessitate an allowance of at least 14 days for any reply. While the evidence establishes that the defendant is often in remote places without email or facsimile, the issues raised in the correspondence were not complex, and it seems to me that there is no reason why instructions could not have been obtained and given by telephone in respect of most of those matters. In short, there was a protracted delay and failure to respond to the plaintiff's requests between at least April 2015 and November 2015. 6. In November 2015, the defendant, while not consenting to all the orders sought in a draft of the notice of motion, indicated consent to the payment out of the amounts then sought by way of reimbursement. After his solicitors had conveyed that information, the plaintiffs increased the amounts which they requested, for reasons which are fairly plainly evident from the material they supplied – in one case, the incurring of a month's further interest, and in the other case, miscalculation of certain expenses that had been incurred over months. Again, it seems to me that it should not have taken 10 or 14 days to give an answer in respect of that minor variation, and the defendant does not in fact suggest that that was the problem. Rather, he says that he delayed responding to the letter of 2 December because he did not, and still does not, believe that Trama was entitled to the amounts claimed by her, and she failed to acknowledge receipt of certain other amounts. When that evidence is examined, it boils down to an assertion that Trama had already been paid or reimbursed $1,350 for the probate filing fee – an issue which is no longer pressed. However, if that was the problem, it was as much a problem before the agreement to pay Trama in November as it was on 2 December, and, so far as the evidence discloses, it had never previously been raised as a reason for the failure to respond at an earlier stage, nor had it been raised when there was agreement to pay her in early November. 7. Given that the defendant had indicated consent to payment of the expenses, the defendant submits that the plaintiffs filed their motion prematurely. However, the defendant's own evidence indicates that that consent was at least wavering by 2 December. Moreover, the motion sought additional relief, the effect of which would be that future administration of the estate could proceed, one way or another, without the defendant's involvement. That relief is now consented to. 8. In substance, it seems to me that the plaintiffs have obtained most of what they sought in the notice of motion. That they would not likely have obtained that relief without coming to Court, and that the necessity to come to court and to seek that relief was fundamentally caused by the defendant's failure to respond to their requests for a period of some eight months. Accordingly, the plaintiffs should have their costs out of the defendant's share of the estate. 9. By consent, the Court orders that: 1. the plaintiffs, as executors of the estate of Doylah Ernest Martin, are authorised and ordered simultaneously to pay from the estate funds the following sums as reimbursement of expenses: 1. $22,515.75 to the executor Russell Ernest Martin; 2. $3,451.50 to the executor Trama Anne Gartrelll; and 3. $11,000 to the executor Wayne Oswald Martin, 1. that sum being the same sum as is referred to in paragraph 3(a) of the terms of settlement of 28 November 2014, and the orders made on or about that date. 2. subject to retaining a sum of $50,000 to cover any capital gains tax, and any other costs necessary to finalise the administration of the estate, the plaintiffs are to forthwith make an interim distribution of the balance to the plaintiffs and the defendant in equal one third shares. 3. the plaintiffs as executors are to finalise the administration of the estate, and distribute the remaining entitlements of the plaintiffs and the defendant in equal one third shares, subject to the effect of the costs order to be made below. 4. the plaintiffs as executors are authorised to perform the tasks referred to in orders (1) through (3) above to the exclusion of Mr Wayne Oswald Martin. 5. the notice of motion filed 14 December 2015 is otherwise dismissed. 1. The Court notes the agreement of the parties that: 1. the plaintiffs will cause any capital gains tax payable by the estate to be assessed and paid out of the estate. 2. the plaintiffs and the defendant each release and indemnify the other from all actions, suits, proceedings, damages, costs, claims, liabilities and demands whatsoever arising from or in connection with the administration of the estate up to the date of these orders. 3. the payments referred to in orders (1) and (2) above are in full and final satisfaction of all claims which the plaintiffs and the defendant have against the estate for executives' commission. 1. The Court further orders that the plaintiffs' costs of the notice of motion of 14 December 2015 be paid on the ordinary basis out of the defendant's entitlement in the estate.