L. Aitchison

Following a successful appeal by the estate trustee, the court ordered the respondent to pay costs of $9,500.

The respondent subsequently sought clarification on whether the costs were payable to the appellant directly or to the estate, arguing they should be paid from or to the estate.

The Divisional Court rejected the respondent's submissions, applying the modern approach to costs in estate litigation.

The court confirmed that the costs are payable directly to the successful appellant, as the findings appealed from were made against him in his personal capacity and he was denied procedural fairness.

The appellant, an estate trustee, appealed an order requiring him to pay damages for breach of fiduciary duty and repay pre-taken compensation following an application to pass accounts.

The Divisional Court found it had jurisdiction to hear the appeal under the Estates Act.

The Court held that the application judge failed to afford the unrepresented appellant procedural fairness, given the complexity of the issues, the lack of proper notice of the claims, the failure to consider statutory defences, and the informal manner in which evidence was introduced.

The appeal was allowed and the matter referred for trial.