Legal Research
Cases
AB v Curry (No 2)

AB v Curry (No 2)

Case [2015] NSWSC 1209 28 August 2015

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: AB v Curry & Anor (No. 2) [2015] NSWSC 1209
Hearing dates: On the papers: submissions provided 30 July 2015
Decision date: 28 August 2015
Jurisdiction: Common Law
Before: White J
Decision:
Order that the defendants pay the plaintiff’s costs of the proceedings on the ordinary basis up to 24 September 2014 and the plaintiff pay the defendants’ costs of the proceedings on the indemnity basis from 25 September 2014.

Catchwords: COSTS – family provision claim – offer of compromise under UCPR r 20.26 made by the unsuccessful defendants – offer substantially exceeded the value of provision ordered in favour of the plaintiff – whether Court should otherwise order under r 40.15(2) – relevance of this being a family provision claim – whether offer was not “beaten” because the Court had also ordered the return of some $5,000 worth of chattels – plaintiff’s submissions on costs not supported by evidence – held that the plaintiff should pay the defendants’ costs on the indemnity basis from after the date of the offer
Cases Cited: AB v Curry [2015] NSWSC 1063
Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
Chapple v Wilcox [2014] NSWCA 392; (2014) 87 NSWLR 646
Bates v Cooke (No 2) [2014] NSWSC 1322
Category: Costs
Parties: AB (Plaintiff)
Aileen Esme Curry (1st Defendant)
Juliet Anna Greentree (2nd Defendant)
Representation:
Counsel:
L Ang (Plaintiff)
K Morrissey (Defendants)
Solicitors:
John Hollier, Solicitor (Plaintiff)
Stuart, Cook & Braham (Defendants)

File Number(s): 2014/215475

Judgment

HIS HONOUR: On 22 July 2015 I made an order for provision in favour of the plaintiff out of the estate of the late [Mrs P] (AB v Curry [2015] NSWSC 1063). The estate was a small one. Its likely net value after payment of the executor’s costs was about $385,000. Under the deceased’s last will the plaintiff was given a legacy of $20,000. I made a provision in her favour, in lieu of the legacy under the will by way of a legacy of $127,000 and by the delivery to her of any goods or chattels of the deceased that remained in the executors’ possession. The executors had estimated that such goods and chattels would be worth about $5,000. That estimate was not challenged.
After judgment was delivered the defendants tendered an offer of compromise served on 24 September 2014. The defendants had offered to compromise the plaintiff’s claim by way of a legacy of $220,000 in lieu of the plaintiff’s legacy under the will. The offer was not accepted. There was no dispute that the offer of compromise was made in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). The defendants submit that in accordance with UCPR r 42.15(2) the appropriate costs orders are that the defendants pay the plaintiff’s costs on the ordinary basis up to 24 September 2014 and that the plaintiff pay the defendants’ costs on the indemnity basis from 25 September…

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 AB v Curry (No 2)

Details

AGLC: AB v Curry (No 2) [2015] NSWSC 1209
Case: [2015] NSWSC 1209
Decision Date: 28 August 2015

CaseChat Overview and Summary

In the Family Court of Australia, the case of AB v Curry involved a claim by the plaintiff for family provision against the defendants, her parents. The plaintiff sought financial provision from her parents' estate, which was the subject of the dispute. The court was tasked with determining the legal issues surrounding the costs incurred during the proceedings, particularly in light of an offer of compromise made by the defendants.

The central legal issues before the court were whether it should order the plaintiff to pay the defendants' costs under UCPR rule 40.15(2), despite the defendants' unsuccessful defence, and whether the offer of compromise should be considered "beaten" given the court also ordered the return of some chattels. The court had to weigh the relevance of the family provision context and the disproportionate nature of the offer relative to the final order.

The court held that the plaintiff should pay the defendants' costs on the indemnity basis from the date of the offer. The reasoning was that the offer substantially exceeded the amount of provision ordered in favour of the plaintiff. Despite the court also ordering the return of some chattels, this did not render the offer "beaten". Additionally, the plaintiff's submissions on costs were not supported by the evidence presented. The court concluded that the circumstances warranted an indemnity costs order against the plaintiff from the date of the offer.

Orders