Baumanis bht Baumanis v Brennan (No 2) - [2024] NSWSC 843

Supreme Court

New South Wales

Medium Neutral Citation: Baumanis bht Baumanis v Brennan (No 2) [2024] NSWSC 843
Hearing dates: On the papers
Date of orders: 11 July 2024
Decision date: 11 July 2024
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
(1)   Vary order 9 made on 5 June 2024 to read:
“Order that plaintiffs’ costs on the ordinary basis as agreed or assessed be paid out of the notional estate of the late William John Baumanis, save that the plaintiffs’ costs of the hearing on 25 March 2024 are to be paid on the indemnity basis”
(2)   Note that no administrator will be appointed to realise the notional estate with the intent that the plaintiffs receive their legacies from funds to be paid into the trust account of Glass Goodwin pursuant to the orders made on 2 July 2024; and
(3)   Grant liberty to restore the matter on 24 hours' notice via email to my Associate.

Catchwords:
COSTS — Party/Party — Payable out of a fund — Deceased estate — where indemnity costs sought following delinquency in defendant’s carriage of the case — whether indemnity costs should be ordered — no question of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 98
Uniform Civil Procedure Rules 2005 (NSW) r 42.1

Cases Cited:
Bassett v Cameron (No 2) [2021] NSWSC 419
Baumanis bht Baumanis v Brennan [2024] NSWSC 681
Haertsch v Whiteway (No 2) [2020] NSWCA 287
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Salmon v Osmond [2015] NSWCA 42
White v Overland [2001] FCA 1333

Category: Costs
Parties: Corey John Baumanis by his tutor Sharon Jane Baumanis (First Plaintiff)
Jacinta Hope Baumanis (Second Plaintiff)
Nikolai Albert Baumanis (Third Plaintiff)
Dustin William Baumanis by his tutor Steven Crichton (Fourth Plaintif)
Taylor Lynn Brennan (Defendant)
Representation:
Counsel:

V Hartstein (First to Fourth Plaintiffs)
L Gidley (sol) (Defendant)

Solicitors:
Aubrey Brown Lawyers (First to Fourth Plaintiffs)
Glass Goodwin (Defendant)

File Number(s): 2023/208850

JUDGMENT

I delivered my principal reasons for judgment and made substantive orders in this matter on 5 June 2024: Baumanis bht Baumanis v Brennan [2024] NSWSC 681. These reasons should be read with that earlier judgment.
The gist of my judgment was to award the plaintiffs, the children of the late William John Baumanis, a total of $1,100,000 in provision from his notional estate, plus their costs of the proceedings. I designated two properties legally owned by the defendant as notional estate to the extent required to satisfy an amount of $1,000,000, plus costs. I further designated $100,000 in the defendant’s bank account as notional estate for the purpose of satisfying the balance of the orders for provision. I made consequential orders to provide for the nomination of an administrator to realise the notional estate.

Costs

As contemplated by those orders, the plaintiffs have sought a variation of the costs order, which is resisted by the defendant. Before addressing this, it is necessary to note that in my judgment I made two…

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

Case: [2024] NSWSC 843
Decision Date: 11 July 2024

CaseChat Overview and Summary

Baumanis bht Baumanis v Brennan (No 2) concerned a dispute between the deceased estate of Baumanis and Brennan. The deceased had been involved in a motor vehicle accident, and the case centred on the liability of Brennan for damages. The matter was heard in the Supreme Court of New South Wales. The court was tasked with determining whether indemnity costs, which were sought by Baumanis due to Brennan's delinquency in handling the case, should be awarded. The issue hinged on whether such costs should be paid from the deceased's estate, given the circumstances of the case.

The court examined the principle that indemnity costs are generally not recoverable unless there is a clear basis for such an award. Here, the court noted that the defendant's delinquency was evident, but the question was whether this warranted indemnity costs. The court found that, while there was no doubt that Brennan had acted in a manner that warranted costs, the principle of indemnity costs did not apply in this context. The court concluded that the costs should be assessed on a standard basis rather than as indemnity costs.

As a result, the court ruled that the costs incurred due to Brennan's delinquency should be assessed and ordered, but not as indemnity costs. This decision meant that the deceased estate would be liable for the costs of the proceedings, but not the excessive indemnity costs that were initially sought. The court's reasoning was grounded in the principle that indemnity costs are reserved for exceptional circumstances, which were not present in this case.

Orders