Foord v Brock & Ors

[2005] NSWCA 156

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Probate proceedings
4. › Discretion as to costs
5. › Whether Master erred in exercise of costs discretion
6. › Conduct of parties as relevant consideration
7. › Re-exercise of discretion by Court of Appeal
1. Practice and Procedure
2. › Costs
3. › Scope of 'costs' under s 76 Supreme Court Act 1970 (NSW)
4. › Whether remuneration and expenses of administrator appointed by consent are costs 'of or incidental to' proceedings in the Court
5. › Administration of estates and trusts
6. › Supreme Court Act 1970 (NSW), s 76(1), (2)
1. Succession Law
2. › Probate
3. › Administration
4. › Appointment of administrator by consent
5. › Whether grant of administration precludes consideration of parties' conduct on costs question
6. › Wills Probate and Administration Act 1898 (NSW), s 75(1)

Quick Take

The remuneration and expenses of an administrator appointed by consent of the parties to resolve a dispute about entitlement to probate may constitute costs 'of or incidental to' proceedings in the Court under s 76(2)(a) of the Supreme Court Act 1970 (NSW), depending on the circumstances. The grant of administration does not preclude the Court from considering the conduct of the parties when determining costs. Where an executor's conduct of estate affairs, though not dishonest, involved marked irregularities and incompetent management, the other executor who resisted and sought independent administration may be treated as having substantially succeeded for costs purposes, notwithstanding that the retrospective investigation exonerated the first executor of misappropriation.