Baggaley v Richards - [2023] NSWSC 1262

Supreme Court

New South Wales

Medium Neutral Citation: Baggaley v Richards [2023] NSWSC 1262
Hearing dates: 14, 16 and 22 August 2023
Date of orders: 26 October 2023
Decision date: 26 October 2023
Jurisdiction: Equity
Before: Robb J
Decision:
The Court's orders are:
(1) Order the defendant to pay to the plaintiff $4,841.55 in compliance with order 9 made by the Court in these proceedings on 25 May 2022.
(2) Order the defendant to pay the plaintiff's costs of securing compliance by the defendant with orders 5(a) and 6 made by the Court on 25 May 2022, as well as his costs of the notice of motion filed on 10 August 2023.

Catchwords:
COSTS – party/party – notice of motion – where defendant unilaterally refused to comply with settlement orders that a refundable accommodation deposit be paid to an aged care facility – where parties subsequently entered into deed of settlement – where plaintiff’s daughters gave personal guarantee that refundable accommodation deposit be repaid to defendant upon plaintiff’s death out of filial duty rather than legal obligation – defendant to pay plaintiff’s costs despite achieving defendant’s desired outcome
CIVIL PROCEDURE – whether a lacuna existed in orders made for disposal of the proceedings – no lacuna found
CIVIL PROCEDURE – where settlement orders clear that interest payable if orders not complied with within 90 days – orders not complied with – interest payable by defendant to plaintiff

Legislation Cited:
Probate and Administration Act 1898 (NSW), ss 63(d), 84A
Succession Act 2006 (NSW), s 59

Cases Cited:
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Category: Consequential orders
Parties: George Richard Baggaley (Plaintiff)
Kylie Richards (Defendant)
Representation:
Counsel:
M Pringle (Plaintiff)
J Hard (Defendant)
Solicitors:
Brander Smith McKnight Law (Plaintiff)
RN Legal (Defendant)

File Number(s): 2021/00291331
Publication restriction: Nil

JUDGMENT

These reasons deal with residual issues arising out of a notice of motion filed by the plaintiff on 10 August 2023 in the Duty List.
The plaintiff, George Richard Baggaley, commenced these proceedings to obtain an order for further family provision under s 59 of the Succession Act 2006 (NSW) against the defendant, Kylie Richards. The proceedings were settled by the parties and the settlement was effected by orders made by consent by Hallen J on 25 May 2022 (the settlement orders).
The purpose of the plaintiff's notice of motion was to obtain orders to compel the defendant to implement a number of the settlement orders.
I will provide an elaboration of the dispute below, but, in essence, one of the settlement orders had the effect that additional family provision would be provided to the plaintiff by way of a loan of $550,000, payable to an aged care facility nominated by the plaintiff to provide a Refundable Accommodation Deposit (RAD) to provide for his accommodation during his lifetime. The amount of the loan was repayable on the plaintiff's death,…

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 Baggaley v Richards

Details

AGLC: Baggaley v Richards [2023] NSWSC 1262
Case: [2023] NSWSC 1262
Decision Date: 26 October 2023

CaseChat Overview and Summary

In the case of Baggaley v Richards, the plaintiff sought a determination regarding the costs incurred in the proceedings between the parties. The dispute involved a refusal by the defendant to comply with settlement orders that required the payment of a refundable accommodation deposit to an aged care facility. The matter was before the court to determine the appropriate allocation of costs in light of the settlement reached subsequently.

The primary legal issues before the court were whether the defendant should be ordered to pay the plaintiff's costs, despite achieving the desired outcome, and whether there existed a gap in the orders made for the disposal of the proceedings. Additionally, the court had to determine whether the defendant should pay interest to the plaintiff for non-compliance with the settlement orders within the stipulated 90-day period.

The court found that there was no lacuna in the settlement orders and that the interest payable by the defendant to the plaintiff was clearly stipulated in the orders. Despite the defendant achieving the desired outcome, the court ruled that the defendant should bear the costs of the proceedings. The court held that the defendant's unilateral refusal to comply with the settlement orders warranted an order for costs against the defendant. The court also determined that the interest payable by the defendant to the plaintiff was applicable due to the non-compliance with the settlement orders.

The final orders of the court mandated that the defendant pay the plaintiff's costs of the proceedings and that the defendant pay the stipulated interest to the plaintiff for the non-compliance with the settlement orders. The court's decision underscored the importance of adhering to settlement orders and the potential financial consequences of non-compliance.

Orders