Supreme Court
New South Wales
Medium Neutral Citation: Andrew v Andrew (No.3) [2013] NSWSC 286 Hearing dates: 25 March 2013 Decision date: 04 April 2013 Jurisdiction: Equity Division Before: Hallen J Decision: 1. Order that the Defendant's costs of the proceedings at trial and in the Court of Appeal, calculated on the indemnity basis, be paid out of the deceased's estate and be borne, as to 62.5%, by the share of the estate passing to the Defendant, and as to 37.5% by the shares of the estate passing to the remaining three residuary beneficiaries equally.
2. Order that there be no costs of the notice of motion, to the intent that the Defendant will bear his own costs, and the remaining residuary beneficiaries will bear their own costs, out of the share of the estate that he receives, and that they receive, respectively.
Catchwords: PROCEDURE - Costs Legislation Cited: Civil Procedure Act 2005
Probate and Administration Act 1898
Succession Act 2006
Uniform Civil Procedure Rules 2005Cases Cited: Andrew v Andrew [2011] NSWSC 115
Andrew v Andrew [2012] NSWCA 308
Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188
Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84
Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481
Moylan v Rickard [2010] QSC 327
O'Brien v McCormick [2005] NSWSC 619Category: Costs Parties: Lynne Christine Andrew (Plaintiff)
Michael Robert Andrew (Defendant)
Other residuary BeneficiariesRepresentation: Mr L Ellison SC (Defendant)
Mr P Pellandine (Other residuary beneficiaries)
MCW Lawyers (Defendant)
Jensens Solicitors (Other residuary beneficiaries)
File Number(s): 2010/59123
JUDGMENT
HIS HONOUR: This is the fourth judgment that has been delivered in respect of the estate of Rita Melba Andrew ("the deceased"), and the second that has been delivered in respect of costs incurred in the proceedings, which were commenced by Lynne Christine Andrew, one of the deceased's children, for a family provision order.
It is also, now, just over four years since the death of the deceased; just over three years since the Plaintiff commenced the proceedings for a family provision order; and just over two years since I delivered the first reasons for judgment, which bears the medium neutral citation [2011] NSWSC 115 ("my reasons").
In my reasons, I dismissed the Plaintiff's proceedings. In the second reasons for judgment, I ordered the Defendant's costs of the proceedings, calculated on the indemnity basis, to be paid out of the deceased's estate. I did not state that it should be borne by the residuary estate alone.
Proceedings commenced by three other children of the deceased, namely Jennifer, Lisa and Tracey, were settled at mediation before the hearing of the Plaintiff's case, on the basis that each discontinued the proceedings (with certain costs orders being made by consent).
There was an appeal, by the Plaintiff, from the orders that I made in my reasons and in respect of the costs orders.
In reasons for judgment delivered by the Court of Appeal, bearing the medium neutral…
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- AGLC
- Andrew v Andrew (No.3) [2013] NSWSC 286
- Case
- [2013] NSWSC 286
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the lower court had correctly exercised its discretion in awarding costs, and whether the costs were proportionate and reasonable. The court was required to review the evidence and submissions made by both parties regarding the conduct of the proceedings, the complexity of the issues, and the outcomes achieved.
The court determined that the lower court had not adequately considered all relevant factors when making its costs decision. The appellate court held that the lower court had failed to properly assess the overall conduct of the parties and the proportionality of the costs awarded. After reviewing the evidence and submissions, the appellate court found that the costs awarded were excessive and not reflective of the conduct of the proceedings. The appellate court exercised its discretion to reduce the costs awarded by the lower court, making a new order for costs that it deemed to be more appropriate.
The final orders of the court included a reduction in the costs awarded to the parties, with specific directions provided for the calculation and payment of the adjusted costs. The appellate court's decision provided clarity on the approach to be taken in future cases involving similar issues, emphasising the importance of proportionality and fairness in costs awards.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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