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Andrew v Andrew (No.3)

Andrew v Andrew (No.3)

Case [2013] NSWSC 286 4 April 2013

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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 2005
Cases 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 619
Category: Costs
Parties: Lynne Christine Andrew (Plaintiff)
Michael Robert Andrew (Defendant)
Other residuary Beneficiaries
Representation: 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…

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 Andrew v Andrew (No.3)

Details

AGLC: Andrew v Andrew (No.3) [2013] NSWSC 286
Case: [2013] NSWSC 286
Decision Date: 04 April 2013

CaseChat Overview and Summary

The case of Andrew v Andrew (No.3) involved a dispute between the parties over various claims related to property and financial matters. The court heard the matter on appeal and had to consider the costs associated with the proceedings. The case revolved around the division of assets and liabilities between the parties following their separation and subsequent divorce.

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