Cartwright v Nairne

The plaintiff is an executrix of the last will and testament of her mother, the late Hazel Maude Nairne (“the deceased”). The defendant is the son of the deceased and is a beneficiary under her will.

On 26 July 2017 the plaintiff commenced the present proceedings seeking, amongst other things, orders for possession of a property at 31 Booth Street, Bathurst, New South Wales (“the property”) and for leave to issue a writ of possession. At the time of the commencement of those proceedings, the defendant was in occupation of the property. His mother had died on 23 February 2017 leaving a will dated 21 March 2014, which is annexed to an affidavit of Belinda Jane Cartwright sworn 27 July 2017. The property forms part of the assets of the deceased’s estate.

Clause 3 of the deceased’s will provided that the defendant be allowed to remain in the property for a period of three months after her death in order to organise his affairs and find alternative accommodation. It was because the defendant had not vacated the premises within that time that the current proceedings were commenced.

Following the commencement of the proceedings, the defendant vacated the premises. That occurred after correspondence passed between those acting for the deceased’s estate and the defendant, the details of which are more fully set out in an outline of argument helpfully provided by counsel for the plaintiff.

On 29 August 2017 the solicitor acting for the estate, Mr Patrick Bird, spoke with the defendant and informed him firstly, that the matter was before this Court for determination today, and secondly, that a claim for the costs of these proceedings would be made. On that occasion, the defendant nominated his new address as 2/235 Rankin Street, Bathurst. Following that conversation, Mr Bird wrote to the defendant. That letter is annexed to an affidavit of Mr Bird of 1 September 2017. Having made reference to their earlier conversation, and having noted that the defendant had vacated the property and had delivered up the keys, the defendant was advised that the current proceedings had been stood over until today. In particular, Mr Bird’s letter stated as follows:

That letter was forwarded to the address nominated by the defendant in an earlier conversation.

I am satisfied in the circumstances that the defendant is on notice of the fact that the proceedings are before the Court today. Specifically, he is on notice of the application to be made in respect of the costs in the proceedings. The defendant has been called several times outside the Court today and has not appeared. In the circumstances, I proposed to proceed with the matter in his absence.

Counsel for the plaintiff has submitted that by his conduct, the defendant has caused the estate to expend money in order to obtain possession of property belonging to the estate. Counsel submitted that such expenditure would not have been incurred had the defendant firstly complied with the terms of the deceased’s will, and/or secondly, had taken advantage of one of the various opportunities which had been extended to him to vacate the property, which are set out in the affidavit material before the Court. It was counsel’s submission that I should order that the defendant pay the plaintiff’s costs of the proceedings from the share of the estate to which he is entitled under the deceased’s will. It was submitted, quite simply, that the remaining beneficiaries under the deceased’s will should not have to pay from their respective shares the costs incurred by the conduct of the defendant. Although the letter from Mr Bird to the defendant on 29 August 2017 made reference to costs being awarded on an indemnity basis, counsel for the plaintiff, as I understood it, accepted that it would remain open to me to order that any costs be paid on the usual basis.

There is no doubt that the plaintiff is entitled to her costs. Further, in all of the circumstances, an order that such costs be paid by the defendant from his share of the estate seems to me to be entirely appropriate: Cherry v Boultbee (1839) 41 ER 171 at 173. However I am not satisfied that such costs should be awarded on an indemnity basis.

Accordingly, I make the following orders: