Triezenberg v Mason (NO 3, recalled and reissued on 6 September 2019) chronicles the cost of a battle for the control of two family trusts. In earlier decisions (see Loss of Morale and Buyer’s Remorse) Mr Mason was removed as a trustee of two trusts settled by him and his wife, and then later was stripped of his Appointor powers.
The latest decision relates to the reasonableness of quantum costs ordered in the decision relating to the removal of Appointor powers and the recovery of costs from the trusts (Buyer’s Remorse).
In the costs decision Fitzgerald J made an order that Mr Mason was entitled to be indemnified for his costs in the proceedings as Fitzgerald J was of the view that notwithstanding that Mr Mason was removed as a trustee, it was not unreasonable for Mr Mason to have defended his removal.
The later question for the court related to the quantum of indemnity costs. In this regard, as noted by Fitzgerald J at , “… that costs order does not, however, mean that the quantum of costs to be indemnified is immune from any scrutiny.”
At  it was stated that “… it cannot have been the settlor’s intention that costs improperly or unreasonably incurred by a trustee are nevertheless to be indemnified.”
Editor’s note: as Mr Mason was a settlor, it is suggested that his view on trustee costs, if considered might turn on whether the trustee in question was a settlor.
The court then considered the individual challenges to costs and held that:
- the costs incurred in relation to an unnecessary and improper subpoena were not reasonably or properly incurred and were to be deducted from the indemnified amount
- costs on account of opposition to payment of the plaintiffs’ costs (considered not to be entirely without merit) although unsuccessful could be met pursuant to the indemnity
- costs incurred in the exercise of appointor powers were not incurred as trustee and were not covered by the indemnity
This decision highlights the need for a trustee to consider, step by step in any proceeding, what costs might be properly recovered and what costs might not. Particular regard must be had to costs incurred in a separate capacity, such as that of an appointor, which must fall outside any right to indemnification on account of trustee costs and expenses.
Also see the No 4 Judgment regarding the quantum of excluded costs.