The substantive litigation between the parties concerned an application for the removal of Mr Couper as trustee of a number of family trusts. His removal was sought due to his decision to use the trust property to arrive at equal outcomes between the beneficiaries, some of whom had received more property than others from other funds, rather than treatin g all beneficiaries equally. The application was brought by both the beneficiaries and by some of Mr Couper's co-trustees.
This hearing concerned who was to pay the costs of both the trustees and the beneficiaries in relation to the substantive litigation. Determining the issue of costs was complicated by the fact that it was not clear who had been the most successful parties. The judge found that the plaintiffs had been successful in a number of important interlocutory matters, including forcing the removal of Mr Couper, but that at trial the outcomes had been more equivocal.
- It had been held during the substantive litigation that, in resisting the action, Mr Couper had been acting in his own interests rather than in the interests of the trust. His costs had not therefore been reasonably incurred and Mr Couper himself was not entitled to an indemnification out of the trust funds (Re Buckton, Buckton v Buckton  2 Ch 406; Re Spurling's Will Trusts, Philpot v Philpot  1 All ER 745; Miller v Cameron (1936) 54 CLR 572)
- The extent of the participation of the defendant trustees in the litigation had been reasonable. Although they had been the subject of hostile attack, they had been removed as trustees not because of any breaches of duty but because of the lack of sympathy between the two sides and the necessity for the appointment of a professional trustee.
- Mr Couper's fellow trustee had been entitled to take part in the action as trustee to have Mr Couper removed. There would be an order for part of the fellow trustee's costs and he would be indemnified from the trust fund for the remainder.
- In the action in which a trustee had been successful in one cause of action and unsuccessful in another no award of costs was justified and the issue of whether the trustee was entitled to indemnification from trust funds was a matter for enquiry by the Public Trustee.
- A trustee who appeared to have been acting in part to defend the interests of his sister rather than the trust but had successfully sought variation of the consent order would receive a modest sum from the trust fund in respect of that.
- The trustee who had been a potential beneficiary in the dispute in which he took part as a trustee had not by virtue of that fact been acting unreasonably. Indemnification was therefore reasonable (Re Ogilvie (1910) 11 SR (NSW) 11).
- The plaintiffs had been successful against Mr Couper in substantial ways before the substantive hearing but suffered reversals at the substantive hearing. It was appropriate that there be an award of costs against Mr Couper who had been the root of the problems litigated over, but the award would be reduced to reflect the reversals at the substantive hearing.
- The costs of the court-appointed counsel and expert would be met from the trust funds. The question of which funds should meet their costs should be examined by the Public Trustee.
This case contains a useful summary of the principles to be taken into account by the court in awarding costs to a trustee litigant.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.