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 1281Category: 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…
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- AGLC
- Bates v Cooke (No 2) [2014] NSWSC 1322
- Case
- [2014] NSWSC 1322
- Decision Date
CaseChat Overview and Summary
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
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Background
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