Ballam v Ferro (No 2)

Case [2022] NSWSC 1358


Supreme Court


New South Wales

Medium Neutral Citation: Ballam & Ors v Ferro & Anor (No 2) [2022] NSWSC 1358
Hearing dates: 28 September 2022
Date of orders: 10 October 2022
Decision date: 10 October 2022
Jurisdiction:Equity
Before: Hallen J
Decision:

See [125]

Catchwords:

SUCCESSION – COSTS – Probate dispute (subject of Cross-Claim by Defendants) and family provision dispute (subject of the Plaintiffs’ claim) – In addition, shortly prior to the hearing, Plaintiffs commenced separate proceedings – In allocation of costs by reference to issues, parties agree that costs are equally divided between Probate and family provision proceedings – No agreement regarding costs in separate proceedings – In probate claim, in which Cross-Claimants successful, whether circumstances warranted investigation and whether the litigation caused by the conduct of the deceased – In family provision claim, which was dismissed, an Offer of Compromise had been made by Defendants – In separate proceedings, consent to dismissal if Defendants successful on Cross-Claim – Costs incurred in regard to separate proceedings dealt with separately

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 98

Powers of Attorney Act 1998 (Qld) s 107

Succession Act 2006 (NSW) s 57(1)(e)

Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, r 42.1, 42.14, 42.15A, 42.2

Cases Cited:

AB v Curry (No 2) [2015] NSWSC 1209

Ballam v Ferro [2022] NSWSC 1200

Bassett v Bassett [2021] NSWCA 320

Bates v Cooke (2015) 14 ASTLR 221; [2015] NSWCA 278

Bates v Cooke (No 2) [2014] NSWSC 1322

Brady v Mikan (No 2) [2022] NSWSC 1320

Briggs v Mantz (No 2) [2014] VSC 487

Bruce v Greentree (No 2) [2015] NSWSC 1636

Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343

Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353

Chant v Curcuruto (No 2) [2021] NSWSC 882

Chisak v Presot (No 2) [2021] NSWSC 754

Commonwealth of Australia v Gretton [2008] NSWCA 117

Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248

D Capital 2 Pty Ltd v Western (No 2) [2022] NSWSC 1283

Fielder v Burgess [2014] SASC 98

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 364

Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1562

Gray v Richards [No 2] (2014) 89 ALJR 113; [2014] HCA 47

Haertsch v Whiteway (No 2) [2020] NSWCA 287

Hancock v Arnold (No 2) [2009] NSWCA 19

Harkness v Harkness (No 2) [2012] NSWSC 35

Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34

Houatchanthara v Bednarczyk [1996] NSWCA 253

House v The King (1936) 55 CLR 499; [1936] HCA 40

In Re Tsaousis [2019] VSC 511

J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA Branch) (No 2) [1993] FCA 42

Karpin v Gough (No 2) [2022] NSWSC 682

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

Leichhardt Municipal Council v Green [2004] NSWCA 341

Ling v Beyond Development Group Pty Ltd (No 2)

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Details
AGLC
Ballam v Ferro (No 2) [2022] NSWSC 1358
Case
[2022] NSWSC 1358
Decision Date

CaseChat Overview and Summary

The matter of Ballam v Ferro (No 2) involved a succession dispute between the parties. The deceased's estate was the subject of a probate dispute, which formed the basis of a cross-claim by the defendants. Additionally, the plaintiffs sought a family provision order. Shortly before the hearing, the plaintiffs initiated separate proceedings, which were not subject to any agreement regarding costs allocation. The court was tasked with determining the appropriate allocation of costs between the various proceedings, particularly focusing on the probate and family provision claims.

The legal issues before the court included whether the circumstances warranted an investigation into the deceased's conduct and whether that conduct led to the litigation. In the probate claim, the cross-claimants were successful, and the court had to decide on the costs allocation in light of this outcome. Furthermore, the family provision claim, which was dismissed, involved an offer of compromise made by the defendants. The separate proceedings were also considered, with a consent to dismissal if the defendants were successful on the cross-claim. The court needed to address the costs incurred in the separate proceedings, which were to be dealt with separately from the other claims.

The court found that the costs were to be equally divided between the probate and family provision proceedings, in accordance with the parties' agreement. However, no agreement existed regarding the costs in the separate proceedings. The court ruled that the circumstances did not warrant an investigation into the deceased's conduct, and it was not found that the litigation was caused by such conduct. In the family provision claim, the court noted the offer of compromise made by the defendants. The court also addressed the separate proceedings, considering the consent to dismissal if the defendants were successful on the cross-claim. The costs incurred in the separate proceedings were to be dealt with in a separate determination.

The final orders of the court included an equal division of costs between the probate and family provision proceedings. The costs of the separate proceedings were to be determined in a separate determination. The court did not find the deceased's conduct to be the cause of the litigation and did not order an investigation. The offer of compromise in the family provision claim was noted, and the consent to dismissal in the separate proceedings was considered in the overall costs allocation.

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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