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Digest of the Week | Costs Against a Personal Representative

Digest of the Week | Costs Against a Personal Representative

Court awards costs against personal representative



Galloway (Litigation guardian of) v. Barski | 2017 BCSC 719 | British Columbia Supreme Court


Estates -- Actions involving personal representatives -- Practice and procedure -- Costs -- Miscellaneous


Special costs -- Father had two children, daughter and son Ja -- Daughter, without knowledge or consent of her father, used power of attorney to transfer property from her deceased mother to her father and then from her father to trust -- Trust agreement included terms making daughter sole legal and equitable trust beneficiary, and trust agreement nominated her son (grandson) as daughter’s nominee with full power to manage and deal with land -- Third-party notice directed at Ja included number of serious allegations against Ja -- Father brought successful action to have transfer of property set aside and to restore title to property to himself; daughter and grandson brought unsuccessful counter-claim against father for relief, and brought unsuccessful third party notice against son seeking protection order -- Overall, Ja and father were substantially successful in outcome of litigation -- Issue arose as to whether father and Ja should recover special costs -- Each of father and Ja as third party was to recover costs assessed at 60 per cent of special costs -- Estimate of costs awards was at $41,589 -- If parties could agree to costs at that amount, then order would be made accordingly, and if not, parties would need to assess costs at registrar’s hearing -- Claims by daughter and grandson that father required protection from Ja while acknowledging his competence were baseless -- Claims about Ja’s history of bad behaviour, criminal activity and complicity in his mother’s death were spurious -- In addition to being unnecessary given that father was competent, trust served daughter’s purposes, and when confronted with father’s request to return title to land to him, daughter and grandson refused to comply notwithstanding that their legal position was without merit -- Defendants were warned that their counterclaim and third party notice were flawed and that father and Ja would seek special costs -- Daughter failed in her role as fiduciary towards her father, and defendants’ posture amounted to more than mistake -- Defendants’ resistance to father’s claim seeking return of title to his home was exceptional circumstance meriting rebuke of special costs -- Allegations made against Ja in third party claim were egregious attack on his character, speculation and unfounded allegations warranting rebuke through special costs order -- Defendants’ conduct against father and Ja was reprehensible -- Litigation improperly embroiled father in defendants’ meritless claims which were really aimed at Ja but were improperly directed father as well.
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