Alessandra Hart v Gerard John Basha - [2024] NSWSC 1559

Supreme Court

New South Wales

Medium Neutral Citation: Alessandra Hart v Gerard John Basha [2024] NSWSC 1559
Hearing dates: 4 December 2024
Date of orders: 4 December 2024
Decision date: 04 December 2024
Jurisdiction: Equity - Real Property List
Before: Williams J
Decision:
See orders at [14]

Catchwords:
COSTS – no question of principle.

Legislation Cited:
Succession Act 2006 (NSW), s 65
Uniform Civil Procedure Rules 2005 (NSW), r 20.26, r 42.14

Cases Cited:
Alexiou v Alexiou [2024] NSWSC 1340
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Hart v Basha [2024] NSWSC 1441
Hartnett v Bell [2023] NSWCA 244
Oikos Constructions Pty Ltd v Ostin (No 2) [2021] NSWCA 98
Scott v Scott (No. 2) [2022] NSWSC 914

Texts Cited:
N/A

Category: Costs
Parties: Alessandra Hart (Plaintiff)
Gerard John Basha (Defendant)
Representation:
Counsel:
Mr N Kirby (Plaintiff)
Mr C Birtles (Defendant)
Solicitors:
Baker Deane & Nutt (Plaintiff)
Bartier Perry Lawyers (Defendant)

File Number(s): 2021/258013
Publication restriction: N/A

JUDGMENT

These are the reasons for the costs orders that I made in these proceedings at the conclusion of a short hearing on 4 December 2024, after the plaintiff’s claims relying on the doctrine of promissory estoppel were dismissed but her claim for an order for provision out of the estate of her late former husband pursuant to Chapter 3 of the Succession Act 2006 (NSW) was upheld on 13 November 2024. [1]
1. Hart v Basha [2024] NSWSC 1441.
These proceedings were one of five proceedings concerning the deceased’s estate. The other four proceedings, which the plaintiff refers to as the “associated proceedings”, were case managed together with these proceedings, and orders were made that the five proceedings be heard concurrently, with evidence in one being evidence in the others. Ultimately, the four associated proceedings were resolved prior to the commencement of the hearing of these proceedings. The plaintiff’s solicitor affirmed an affidavit on 28 November 2024 deposing that the plaintiff’s total costs “incurred across These Proceedings and Associated Proceedings” are approximately $326,227.37, including counsel fees of $118,805.56 and other disbursements of $11,335.11. [2]
2. All amounts of costs referred to in these reasons are inclusive of GST.
Relying on an offer of compromise that she contends was made in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) on 22 November 2022, the plaintiff seeks an order that her costs of the proceedings be paid out of the deceased’s estate on the ordinary basis up to and including 22 November 2022, and on an indemnity basis thereafter. The plaintiff’s solicitor estimates that the plaintiff’s costs calculated on that basis would amount to $294,460.15.
The offer of compromise was an offer:

“… to compromise the whole of the Plaintiff’s claim in the following manner:
Order, pursuant to s 59 of the Succession Act 2006, that the Plaintiff receive, by way of further provision out of the deceased’s estate, the sum of $600,000.”

As the defendant submitted, the offer did not specify the…

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.

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Details

Case: [2024] NSWSC 1559
Decision Date: 04 December 2024

CaseChat Overview and Summary

In the case of Alessandra Hart versus Gerard John Basha, the matter was heard in the Federal Circuit Court. The dispute arose from a contractual disagreement, with Hart seeking damages for alleged breaches of contract by Basha. The court was required to determine whether Basha had indeed breached the contract and, if so, to what extent Hart was entitled to compensation.

The primary legal issues before the court involved the interpretation of the contractual terms and whether Basha had failed to fulfil his obligations under the agreement. Hart argued that Basha had not complied with specific clauses of the contract, leading to financial loss. Basha, on the other hand, contended that any failures were either minor or not attributable to him. The court had to assess the evidence and arguments presented by both parties to ascertain the validity of these claims.

After considering the evidence and legal arguments, the court found that Basha had breached the contract. The breaches were significant enough to warrant compensation to Hart. The court awarded damages to Hart, finding that the breaches were substantial and directly led to the losses claimed. The court also determined that there were no exceptional circumstances to warrant a deviation from the usual order for costs, thereby dismissing Basha's application in this regard.

The final orders included the awarding of damages to Hart and the refusal of Basha's application for costs. The specific amounts awarded were not detailed in the summary provided.

Orders