James C. Davies

The applicants, estate trustees, sought directions regarding the distribution of a lapsed charitable gift in the will of Anna Salnikova.

The deceased had bequeathed 20% of her estate's residue to a charity that no longer exists.

The applicants proposed distributing this portion pro-rata among the other 19 named charities, effectively treating it as an intestacy.

The Public Guardian and Trustee (PGT) argued for the application of the cy-pres doctrine, directing the gift to a charity with similar charitable objects.

The court found that the will demonstrated a general charitable intent, particularly given that 95% of the estate was gifted to charities and the specific importance of the lapsed gift's purpose (orphans in South America).

Consequently, the court applied the cy-pres doctrine, rejecting the applicants' intestacy argument and ordering the PGT to identify suitable nominee charities.

This is a costs endorsement following a successful application by the Applicants concerning mutual driveway easements.

The Applicants had served an early offer to settle that mirrored the relief ultimately granted, offering to waive costs.

The Respondent did not accept the offer and was unsuccessful in her defence and counter-application.

The court awarded the Applicants substantial indemnity costs of $75,000.00, finding that the early service of the offer did not negate the cost consequences under Rule 49.10 of the Rules of Civil Procedure.

Following dismissal of a motion to set aside a long-standing default judgment, the successful responding party sought costs.

The court applied the presumptive loser‑pays principle and found no circumstances justifying departure from it.

Given the underlying allegations of fraud and the moving party’s unsupported allegations of misconduct against the respondent, the court determined the case warranted substantial indemnity costs rather than the usual partial indemnity scale.

The court found the claimed fees and disbursements reasonable under Rule 57.01(1) of the Rules of Civil Procedure and declined to reduce the amount.

Costs were ordered payable by the unsuccessful moving party.

The defendant brought a motion to set aside a 1999 default judgment obtained in an estate-related action alleging misappropriation of estate assets.

The court applied the three-part test under Rule 19.08 of the Rules of Civil Procedure requiring promptness, an adequate explanation for the default, and a triable defence on the merits.

Although the court accepted that the motion was brought promptly after the defendant claimed to learn of the judgment, it found he had knowledge of the action at the time and intentionally ignored the proceedings despite substituted service and direct communications with counsel.

The defendant failed to provide a credible explanation for the default and did not advance any detailed evidence establishing a triable defence.

Considering the significant prejudice arising from attempting to litigate allegations more than a decade later, the court held the interests of justice favoured maintaining the judgment.