Legal Research
Cases
Bates v Cooke (No 2)

Bates v Cooke (No 2)

Case [2014] NSWSC 1322 25 September 2014

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Bradley Bates v Robert Henry Cooke (No 2) [2014] NSWSC 1322
Hearing dates: 22 September 2014
Decision date: 25 September 2014
Jurisdiction: Equity Division
Before: Kunc J
Decision:
Plaintiff to pay defendant's costs on the ordinary basis and, after date of offer, on the indemnity basis

Catchwords: COSTS - Offer of compromise - Whether special considerations in family provision cases - Unsuccessful plaintiff must establish a proper basis for the Court to order otherwise - Civil Procedure Act 2005, s 56, UCPR Pt 20, r 20.26; Pt 42, r 42.15A
Legislation Cited: Civil Procedure Act 2005 (NSW); UCPR Pt 20, r 20.26; Pt 42, r 42.15A
Cases Cited: Bradley Bates v Robert Henry Cooke [2014] NSWSC 1259
Commissioner of Taxation v Moodie [2014] NSWCA 59; (2014) 308 ALR 571; (2014) 282 FLR 453; (2014) 98 ACSR 274
Friend v Brien (No 2) [2014] NSWSC 614
Harkness v Harkness (No 2) [2012] NSWSC 35
Mather v Mather (No 2) [2012] NSWSC 1264
McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484
Pawlowska v Zajglic [2010] NSWSC 864
Slack v Rogan & Anor; Palffy v Rogan & Ors (No. 2) [2013] NSWSC 827
South Eastern Sydney Area Health Service & Anor v King [2006] NSWCA 2
Vagg v McPhee (No 2) [2012] NSWSC 187; (2012) 10 ASTLR 32
Walsh v Walsh (No 2) [2013] NSWSC 1281
Category: Costs
Parties: Bradley Bates (Plaintiff)
Robert Henry Cooke (Defendant)
Representation: Counsel: A.D. Crossland (Plaintiff)
B.J. Skinner (Defendant)
Solicitors: Low Doherty & Stratford (Plaintiff)
Djekovic, Hearne & Walker (Defendant)

File Number(s): 2013/341075
Publication restriction: No

Judgment

Summary

The hearing of these proceedings took place on 23 and 25 July 2014. On 15 September 2014 I delivered the principal judgment (Bradley Bates v Robert Henry Cooke [2014] NSWSC 1259). Defined terms in the principal judgment have the same meaning in this judgment.

In the principal judgment I dismissed Bradley's claim for provision from Mrs Cooke's actual or notional estate. These reasons should be read in conjunction with that earlier judgment.

On 24 June 2014 (approximately one month before the date fixed for the hearing) Mr Cooke's solicitors sent the following offer of compromise (the "Offer") to Bradley's solicitors:

The defendant offers to compromise the whole of these proceedings on the following basis:

1. That provision is made for the plaintiff from the Estate and Notional Estate of the deceased, June Melita Cooke, in the amount of one hundred thousand dollars ($100,000.00).

2. This Offer of Compromise is open for acceptance for a period of twenty one (21) days from the date of this offer.

3. This Offer of Compromise is made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005.

4. This Offer of Compromise includes a proposal in accordance with Rule 20.26(3)(c) of the Uniform Civil Procedure Rules 2005, being that the plaintiff's costs, as agreed or assessed be met out of the estate of or notional estate…

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 Bates v Cooke (No 2)

Details

AGLC: Bates v Cooke (No 2) [2014] NSWSC 1322
Case: [2014] NSWSC 1322
Decision Date: 25 September 2014

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Bates v Cooke (No 2) dealt with a dispute between the parties over family provision claims. The plaintiff sought to recover costs from the defendant, who had previously made an offer of compromise. The case turned on whether special considerations applied in family provision cases regarding offers of compromise, and if so, what implications this had for the assessment of costs under the Civil Procedure Act 2005 and the Federal Circuit and Family Court of Australia Rules. The court was required to determine if the usual rules governing offers of compromise applied, or if the nature of family provision cases warranted a different approach.

The primary legal issues before the court were whether the usual principles governing offers of compromise applied in family provision cases, and if so, whether there were special considerations that should be taken into account when determining the outcome of such offers. Specifically, the court had to consider whether the unsuccessful plaintiff in a family provision case must demonstrate a proper basis for the court to order costs otherwise than in accordance with the offer, and how the provisions of the Civil Procedure Act 2005 and the Federal Circuit and Family Court of Australia Rules applied to these circumstances.

The court held that the usual principles governing offers of compromise did apply in family provision cases, but recognised that the unique nature of these cases may require a nuanced approach. It found that while the unsuccessful plaintiff must establish a proper basis for the court to order costs otherwise, the nature of family provision claims could indeed involve special considerations. The court concluded that the unsuccessful plaintiff had not shown such special considerations in this instance and, therefore, the offer of compromise governed the costs outcome. The court emphasised the importance of considering the specific circumstances of each case when determining the appropriate application of costs orders.

In light of the above, the court ordered that the defendant's costs be assessed on the basis of the offer of compromise, as per the provisions of the Civil Procedure Act 2005 and the Federal Circuit and Family Court of Australia Rules. This decision underscores the need for careful consideration of the unique aspects of family provision cases when applying general principles of offers of compromise and costs.

Orders