Ashton v Pratt (No 2)

Case [2015] NSWCA 134


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Ashton v Pratt No 2 [2015] NSWCA 134
Hearing dates:On the papers
Decision date: 21 May 2015
Before: Bathurst CJ at [1]; McColl JA at [20]; Meagher JA at [21]
Decision:

Cross-appeal dismissed.
Order that the second and third respondents and their tutor, Liam Kelly, pay the first respondent’s costs of the cross-appeal, excluding the costs of the motion filed on 23 October 2013 and determined on 18 November 2013.

Catchwords:

COSTS - costs orders against children – costs orders against tutors

COSTS – costs orders against joined parties - where successful party unsuccessfully opposed joinder application – where joined party did not seek costs against successful party in earlier proceedings

COSTS – analogy between principle that where testator has caused problem, estate should bear the costs and cases where party reasonably raises issue relating to affairs of testator for investigation
Legislation Cited: Conveyancing Act 1919 (NSW)
Cases Cited: Ashton v Pratt [2013] NSWCA 400
Ashton v Pratt [2015] NSWCA 12
Azar v Kathirgamalingan [2012] NSWCA 429
Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62
John Alexander’s Club Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1
Kostka v The Ukrainian Council of NSW Incorporated [2013] NSWSC 222
News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; 64 FCR 410
Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244
Yakmor v Hamdoush (No 2) [2009] NSWCA 284; 76 NSWLR 148
Category:Costs
Parties: Madison Ashton (Appellant)
Jeanne Pratt (First respondent)
Indra Heslop-Blochowiak (Second respondent)
Xaviar Conor Heslop-Kelly (Third respondent)
Representation:

Counsel:
G O’L Reynolds SC / R K Newton / D W Robertson (Appellant)
M S Henry SC / J L Roy (First respondent)
J Hewitt (Second and third respondents)

Solicitors:
David Legal (Appellant)
Arnold Bloch Leibler (First respondent)
Beazley Singleton (Second and third respondents)
File Number(s):2012/42742
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity
Citation:
[2012] NSWSC 3
Date of Decision:
16 January 2012
Before:
Brereton J
File Number(s):
2010/56518

Judgment

  1. BATHURST CJ: In Ashton v Pratt [2015] NSWCA 12 (the appeal), the Court dismissed an appeal brought by Ms Ashton (the appellant) from a judgment of Brereton J in which Ms Ashton claimed that the late Mr Pratt had agreed to confer, or represented that he would confer, certain benefits on her in consideration of her agreeing to become, or remaining, his mistress. One of the benefits alleged was that Mr Pratt would set up a trust fund of $2.5 million for each of her two children. The first respondent in the appeal was Mr Pratt’s executor.

  2. The appeal was originally fixed for hearing on 18-19 November 2013. However, by notice of motion filed on 23 October 2013, the appellant’s children, Indra Heslop-Blochowiak and Xavier Connor Heslop-Kelly (the children), by their tutor, Liam Kelly, sought to be joined as second and third respondents to the…

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Details
AGLC
Ashton v Pratt (No 2) [2015] NSWCA 134
Case
[2015] NSWCA 134
Decision Date

CaseChat Overview and Summary

The dispute in *Ashton v Pratt (No 2)* concerned an appeal and cross-appeal regarding costs orders made in earlier proceedings. The parties involved were the first respondent, who was the successful party in the earlier proceedings, and the second and third respondents, along with their tutor, Liam Kelly. The proceedings before the Court of Appeal involved a cross-appeal by the second and third respondents and their tutor.

The primary legal issue before the Court of Appeal was whether costs orders should be made against the second and third respondents and their tutor, Liam Kelly, in relation to the cross-appeal. This involved considering the circumstances under which costs orders might be made against children and their tutors, and the principles governing costs orders against joined parties, particularly where the successful party had unsuccessfully opposed a joinder application but the joined party had not sought costs against them in earlier proceedings.

The Court of Appeal applied established principles regarding costs. It drew an analogy between the principle that where a testator has caused a problem, the estate should bear the costs, and cases where a party reasonably raises an issue relating to the affairs of a testator for investigation. The court ultimately determined that the second and third respondents and their tutor should bear the costs of the cross-appeal, reflecting the outcome of the appeal and the specific circumstances of the proceedings.

The Court of Appeal dismissed the cross-appeal. It ordered that the second and third respondents and their tutor, Liam Kelly, pay the first respondent’s costs of the cross-appeal, with an exclusion for the costs associated with a specific motion filed on 23 October 2013 and determined on 18 November 2013.

Orders

Orders of the court

Cross-appeal dismissed.

Order that the second and third respondents and their tutor, Liam Kelly, pay the first respondent’s costs of the cross-appeal, excluding the costs of the motion filed on 23 October 2013 and determined on 18 November 2013.

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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