obiter | ByLawyers News and Updates

New succession cases – QLD

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New succession cases have been added to the By Lawyers 101 Succession Answers (QLD) reference manual. These helpful recent cases fall under the Estates and Family provision claims sections of the publication.

Costs in Family provision claims

Shelly v Prager (No 2) [2020] NSWSC 1553 concerned the court assessing the overall justice of a case when determining whether special provision for costs should be made in a family provision claim. Williams J at [18] stated the following factors may be relevant:

– whether one party has engaged in unreasonable conduct in the commencement or maintenance of the proceedings which has resulted in the other party (or parties) to the proceeding incurring unnecessary costs;

– whether an applicant’s claim for provision out of an estate is frivolous, vexatious or made without reasonable prospects of success;

– whether an applicant’s claim, although unsuccessful, was otherwise reasonable, meritorious or borderline; and

– the relative size of the deceased estate.

Judicial advice for trustees

Re Perpetual Trustee Company Limited as a trustee for the Joseph Banington Davis Settlement [2020] NSWSC 1574 concerned the dual purpose of an application for judicial advice by an executor/ trustee. Robb J at [72] noted that:

It is…not right to see a trustee’s application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust.

The addition of these recent cases to 101 Succession Answers (QLD) is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

New succession cases – VIC

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New succession cases have been added to the By Lawyers 101 Succession Answers (VIC) reference manual. These helpful recent cases fall under the Estates and Family provisions claims sections of the publication.

Costs in Family provision claims

Shelly v Prager (No 2) [2020] NSWSC 1553 concerned the court assessing the overall justice of a case when determining whether special provision for costs should be made in a family provision claim. Williams J at [18] stated the following factors may be relevant:

– whether one party has engaged in unreasonable conduct in the commencement or maintenance of the proceedings which has resulted in the other party (or parties) to the proceeding incurring unnecessary costs;

– whether an applicant’s claim for provision out of an estate is frivolous, vexatious or made without reasonable prospects of success;

– whether an applicant’s claim, although unsuccessful, was otherwise reasonable, meritorious or borderline; and

– the relative size of the deceased estate.

Judicial advice for trustees

Re Perpetual Trustee Company Limited as a trustee for the Joseph Banington Davis Settlement [2020] NSWSC 1574 concerned the dual purpose of an application for judicial advice by an executor/trustee. Robb J at [72] noted that:

It is…not right to see a trustee’s application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust.

The addition of these recent cases to 101 Succession Answers (VIC) is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

New succession cases – NSW

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New succession cases have been added to the By Lawyers 101 Succession Answers (NSW) reference manual. These helpful recent cases fall under the Estates and Family provision claims sections of the publication.

Proof of death by inference

The Estate of Alan Bruce Beeby [2020] NSWSC 1512 concerned proof of death by inference. A court may declare a missing person dead, without a death certificate and before the seven-year period relating to the presumption of death is met. At [53] Hallen J explained:

…an inferred death is one where, although a body is not found or recovered, the death can be inferred from the surrounding circumstances, and where it can be inferred that it is more probable that the person has died, rather than that he, or she, is living.

Judicial advice for trustees

Re Perpetual Trustee Company Limited as a trustee for the Joseph Banington Davis Settlement [2020] NSWSC 1574 concerned the dual purpose of an application for judicial advice by an executor/trustee. Robb J at [72] noted that:

It is…not right to see a trustee’s application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust.

Intermeddling by executors

The Victorian case of Re Abat [2020] VSC 560 contains a discussion of when intermeddling in an estate might deprive an executor of the right to renounce. It should be read in conjunction with the NSW case of Mulray v Ogilvie [1987] 9 NSWLR 1 which is already in 101 Succession Answers.

Costs in Family provision claims

Shelly v Prager (No 2) [2020] NSWSC 1553 concerned the court assessing the overall justice of a case when determining whether special provision for costs should be made in a family provision claim. Williams J at [18] stated the following factors may be relevant:

– whether one party has engaged in unreasonable conduct in the commencement or maintenance of the proceedings which has resulted in the other party (or parties) to the proceeding incurring unnecessary costs;

– whether an applicant’s claim for provision out of an estate is frivolous, vexatious or made without reasonable prospects of success;

– whether an applicant’s claim, although unsuccessful, was otherwise reasonable, meritorious or borderline; and

– the relative size of the deceased estate.

The addition of these recent cases to 101 Succession Answers (NSW) is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

101 Costs Answers – ALL STATES

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101 Costs Answers is the latest addition to the By Lawyers ‘101’ series of helpful reference materials.

Located in the Reference materials folder on every By Lawyers matter plan, this publication contains valuable commentary and precedents on all aspects of legal costs.

The precedents include all of the By Lawyers costs agreements/client services agreements and costs disclosures, drawn together from all By Lawyers publications into a convenient single publication.

The By Lawyers costs agreements are compliant with the strict requirements of the various state laws. They cater for all areas of law, with detailed recitals of the scope of work usually undertaken in each type of matter. This not only defines the retainer but makes it easy for practitioners to produce documents quickly upon engagement.

The 101 Costs Answers commentary includes:

Disclosure requirements

The commentary helps practitioners to navigate some of the more complicated disclosure requirements including regulated costs and the specific obligations for different types of litigation matters. The effect of non-disclosure is also covered.

Disbursements

Commentary on defining and recovering disbursements includes relevant case law and examples. The By Lawyers costs agreements are drafted to clearly identify usual disbursements.

Counsel’s fees

The commentary deals with the contractual relationship between solicitors and barristers as well as disclosure requirements. With the solicitor responsible for payment of counsel’s fees regardless of the solicitor’s agreement with the client, the By Lawyers costs agreements include counsel’s fees as specific disbursements which the client is obliged to pay.

Debt recovery

Where debt recovery is necessary, 101 Costs Answers contains letters of demand and example pleadings to assist with the recovery of costs. There is also detailed commentary on costs assessment procedures and the relevant forms for each state are available on the matter plan.

Like all By Lawyers publications, 101 Costs Answers contains interactive links to relevant legislation and cases, which are always kept updated.

Indexation of maximum costs – Motor accident injury claims – NSW

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Practitioners are reminded that, from 1 October 2018, indexation commenced of the maximum costs for legal services and the maximum fees for medico-legal services recoverable from an insurer in respect of motor vehicle accident claims relating to accidents which occurred on or after 1 December 2017. The maximum costs will be indexed each year in line with inflation.

The maximums for legal costs and medico-legal fees are set out in Schedule 1 to the Motor Accident Injuries Regulation 2017. The maximum amounts recoverable for legal fees depend upon the stage at which the matter is resolved.

The commentary for motor accidents after 1 December 2017 in the By Lawyers NSW Motor Accidents Guide has been updated to note the indexation and provide the relevant links to both the legislation and the costs section of the SIRA website.

Family Law – FCC costs increases

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There have been costs increases in the Federal Circuit Court for itemised costs in family law and child support proceedings, pursuant to Schedule 1 of the Federal Circuit Court Rules 2001.

The increases are for initiating applications and other hearing-related costs.

An alert has been added to the By Lawyers Children and Property settlement publications.

Conveyancing – Conveyancers’ Costs Disclosure precedents

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By Lawyers are pleased to announce the addition of Conveyancers’ Costs Disclosure precedents for NSW, VIC, NT, SA and TAS.

These precedents comply with the relevant legislation governing the costs and dispute resolution disclosure requirements for licensed conveyancers.

The Conveyancers Costs Disclosure precedents are now included in the following By Lawyers Guides:

  • Sale of real property
  • Purchase of real property
  • Mortgages
  • Leases

These are important precedents for all licensed conveyancers – if the necessary disclosure is not given before or at the time of the retainer, a client is not required to pay the conveyancer’s costs!

TAS – Estates – Guidance Note – Itemised bills and beneficiaries

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In July 2018 the Legal Profession Board of Tasmania identified an issue with an increasing number of complaints against legal practitioners relating to perceived overcharging and failure to communicate with executors/administrators and beneficiaries regarding costs for estate matters.

As a result, the Legal Profession Board issued a detailed Guidance Note for the profession outlining what it considers to be appropriate standards of conduct, aimed at minimising complaints.

The Guidance Note says that, while there is no legislative requirement to provide beneficiaries with itemised bills, it ‘may be advisable’ to do so. This particularly applies where practitioners are also the executor or administrator of the estate and especially if they are seeking commission or proposing to charge in any way not provided for in the will.

The By Lawyers Probate and Letters of Administration commentaries have been updated accordingly.

WA Criminal – Costs determination

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For costs applications by a successful accused at the conclusion of criminal proceedings in WA Magistrates Court, the amount of any award of costs may be determined in accordance with the relevant determination made under the Legal Profession Act 2008 for the purposes of the Official Prosecutions (Accused’s Costs) Act 1973 and in accordance with s 280 Legal Profession Act 2008 and s 67(3) Criminal Procedure Act 2004.

A link to the current costs determination produced by the Legal Costs Committee in accordance with s 278 of the Legal Profession Act 2008 has been added to the By Lawyers Criminal  commentary.

Costs – All costs agreements now able to be signed electronically

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All of the By Lawyers costs agreements now have electronic signature fields allowing them to be signed electronically via DocuSign, which is available to LEAP in the cloud users. The fee disclosure for this service has also been added into the disbursement section of the costs agreements, should the client choose to take advantage of this service.

 

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