Di Benedetto v Kilton Grange Pty Ltd

[2017] VSCA 119

Victorian Court of Appeal

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Interrogate

Catchwords

1. Trusts and Trustees
2. › Trustee's right of indemnity
3. › Legal costs of administration proceeding
4. › Whether trustee's costs properly incurred
5. › Whether adversarial nature of proceeding sufficient to deny indemnity
6. › Whether costs discretion miscarried
7. › Supreme Court (General Civil Procedure) Rules 2015 (Vic), O 54
1. Trusts and Trustees
2. › Administration proceeding
3. › Costs
4. › Trustee commencing proceeding for personal benefit
5. › Whether proceeding improperly brought or conducted
6. › Onus on trustee to show costs not improperly incurred
7. › Trustee Act 1958 (Vic), s 36(2)
1. Appeal
2. › Standard of appellate review
3. › Appeal from discretionary costs order
4. › Whether error of kind described in House v The King
5. › Residual ground of unreasonableness or plain injustice
1. Courts and Judges
2. › Reasons for judgment
3. › Communication of reasons by email from judge's associate
4. › Whether form of reasons appropriate
5. › Purposes of giving reasons

Quick Take

A trustee who commences an administration proceeding is entitled to indemnity from the trust for legal costs unless those costs are shown to have been improperly incurred. The mere characterisation of the proceeding as adversarial, or a finding that the other party substantially succeeded, does not suffice to deny the trustee's right of indemnity. The court must consider whether the proceeding was improperly brought or conducted. Separately, while reasons for judgment may now be communicated electronically rather than handed down in open court, caution is required where reasons are conveyed only through an associate's email, as this may in some cases fail to achieve the purposes of publishing judicial reasons.