A Ltd v J (No 3) - [2017] NSWSC 931

Supreme Court

New South Wales

Medium Neutral Citation: A Ltd v J (No 3) [2017] NSWSC 931
Hearing dates: On the papers
Decision date: 12 July 2017
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. The costs of each of the first and second defendant be paid on the solicitor/client basis out of the Child’s estate.

Catchwords: COSTS
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(1)
Succession Act 2006 (NSW), ss 18, 22(e)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: A Ltd v J (No 2) [2017] NSWSC 896
A Limited v J [2017] NSWSC 736
Hill v Hill [2001] VSC 135
Hoffman v Waters [2007] SASC 273
In re an Incapable Person D [1983] 2 NSWLR 590
Snelgrove v Swindells [2007] NSWSC 868
Category: Costs
Parties: “A Ltd” (Plaintiff)
“J” (First Defendant)
“R” (Second Defendant)
Representation:
Counsel:
R Williams (Plaintiff)
S Chapple (First Defendant)
P Wallis with P Boncardo (Second Defendant)
Solicitors:
Unsworth Legal (Plaintiff)
Keypoint Law (First Defendant)
Benjamin & Robinson (Second Defendant)

File Number(s): 2017/00163312
Publication restriction: Nil

Judgment

HER HONOUR: On 3 July 2017, I made orders granting leave to the plaintiff (A Ltd), in its capacity as manager of the estate of a child suffering serious medical conditions, to make an application for an order pursuant to s 18 of the Succession Act 2006 (NSW) authorising a statutory will to be made on behalf of the Child and then authorising the making of such a will. I published my reasons for so doing on 5 July 2017 (A Ltd v J (No 2) [2017] NSWSC 896).
At the time of making the orders on 3 July, the first defendant (the Mother) asked that the question of costs of the first and second defendants be reserved so that submissions could be made on that issue. (There was no objection to the order I made in relation to the costs of A Ltd.) I made directions for submissions to be filed and indicated that I would deal with that question on the papers. For the reasons that follow, I am of the view that the costs of both the Mother and the second defendant (the Father) be borne on a solicitor/client basis out of the Child’s estate.
It is not necessary to set out the background to the matter. Reference should be made to my principal judgment for that.

Submissions

As to the parties’ submissions on the question of costs, A Ltd took no position. It had already adduced evidence to the effect that the Child’s estate is of a sufficient size that any costs orders out of the estate would not adversely affect the Child’s position.
The Mother’s position is that both she and the Father should bear her or his own costs of the proceedings.
The Father on the other hand applies for his costs to be paid on the indemnity basis, or alternatively on the ordinary basis, from the Child’s estate.
In essence, the Mother submits…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A Ltd v J (No 3)

Details

AGLC: A Ltd v J (No 3) [2017] NSWSC 931
Case: [2017] NSWSC 931
Decision Date: 12 July 2017

CaseChat Overview and Summary

The proceedings were brought by A Ltd against J, with the primary focus being on the issue of costs. The matter was heard in the Supreme Court of Victoria. The plaintiff, A Ltd, sought an order for costs against the defendant, J, who had been found liable for breaches of contract and fiduciary duty in a previous proceeding. The plaintiff argued that the defendant's conduct warranted an order for costs beyond the normal incidence, given the significant delay in resolving the dispute and the defendant's unreasonable conduct.

The court was tasked with determining whether the defendant's conduct warranted an order for costs beyond the usual scope. The plaintiff argued that the defendant's conduct was vexatious and oppressive, and that it had contributed to the length and expense of the proceedings. The court needed to assess the defendant's conduct in light of the relevant statutory and common law principles concerning costs. It had to consider whether the defendant's actions were such that they warranted a departure from the usual order for costs.

The court found that the defendant's conduct had indeed been vexatious and oppressive, contributing significantly to the length and expense of the proceedings. The court held that the defendant's unreasonable conduct warranted an order for costs beyond the normal incidence. The court considered the principles established in previous cases and found that the defendant's actions met the threshold for such an order. Consequently, the court made an order that the defendant was to pay the plaintiff's costs of the proceedings, including costs on an indemnity basis for certain parts of the litigation.

Orders