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
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.
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…
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
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.