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Bevilacqua v Robinson (No 2)

Bevilacqua v Robinson (No 2)

Case [2008] NSWSC 520 2 June 2008

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CITATION: Bevilacqua v Robinson (No 2) [2008] NSWSC 520

HEARING DATE(S): 27 May 2008

JUDGMENT DATE :
2 June 2008

JUDGMENT OF: Jagot AJ

DECISION: The costs and expenses of the defendant are to be paid out of the estate of the late Jennifer Margaret Robinson.

CATCHWORDS: COSTS - whether unsuccessful plaintiff should be ordered to pay defendant's costs - FAMILY PROVISION ACT proceedings

LEGISLATION CITED: Civil Procedure Act 2005
Family Provision Act 1982
Uniform Civil Procedure Rules 2005

CATEGORY: Consequential orders

CASES CITED: Bevilacqua v Robinson [2008] NSWSC 463
Calderbank v Calderbank [1975] 3 All ER 333
Collings v Vakas [2006] NSWSC 393
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Harrison v Schipp [2001] NSWCA 13
Moussa v Moussa [2006] NSWSC 509
Nicholls v Hall [2007] NSWCA 356
Pert v Norris-Smith [2008] NSWSC 57
Shearer v The Public Trustee (Unreported, Supreme Court of NSW, Young J, 21 April 1998)
Sherborne Estate (No 2): Vanvalen v Neaves (2005) 65 NSWLR 268
Singer v Berghouse (1993) 114 ALR 521

PARTIES: Gaetano Bevilacqua
Samantha Jennifer Robinson - Estate of Jennifer Margaret Robinson

FILE NUMBER(S): SC 4058 of 2007

COUNSEL: Mr M K Meek, plaintiff
Ms Louise Goodchild, defendant

SOLICITORS: Russell McLelland Brown Lawyers, plaintiff
Ritchie & Associates, defendant

IN THE SUPREME COURT

OF NEW SOUTH WALES
EQUITY DIVISION

Jagot AJ

2 June 2008

4058 of 2007 GAETANO BEVILACQUA v SAMANTHA JENNIFER ROBINSON (NO 2)

JUDGMENT

1 HER HONOUR : In this matter the outstanding question is one of costs. On 20 May 2008 I dismissed the summons by which the plaintiff sought an order for provision out of the estate of the late Jennifer Margaret Robinson under s 7 of the Family Provision Act 1982 (Bevilacqua v Robinson [2008] NSWSC 463).

2 The defendant sought an order that the plaintiff pay the defendant’s costs on an indemnity basis. The defendant submitted that the plaintiff’s claim was without merit (as his evidence failed to establish any need for provision), his conduct of the proceedings unreasonably increased the costs (by the plaintiff swearing three affidavits, including one alleging serious misconduct by the beneficiaries with respect to the deceased’s bank account, an accusation belatedly withdrawn and requiring production of the beneficiaries’ financial records), and findings had been made that the plaintiff was evasive and lacking credit in the giving of his evidence. Alternatively, the defendant sought an order that the plaintiff pay the defendant’s costs on the usual basis up to 7 April 2008 and on an indemnity basis thereafter, relying on a document styled offer of compromise served on that date. The defendant submitted that the plaintiff’s approach (that there be no order with respect to the plaintiff’s costs) would be unjust, and the decisions relied on by the plaintiff allowing costs to lie where they fall involved significantly different facts. The plaintiff’s reliance on his modest financial position should not be accepted as he had never disclosed his true financial position. Further, and contrary to the plaintiff’s submission,…

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 Bevilacqua v Robinson (No 2)

Details

AGLC: Bevilacqua v Robinson (No 2) [2008] NSWSC 520
Case: [2008] NSWSC 520
Decision Date: 2 June 2008

CaseChat Overview and Summary

In the matter of Bevilacqua v Robinson, the plaintiff, Bevilacqua, sought an order for the defendant, Robinson, to pay his costs under the Family Provision Act. The case was heard in the Supreme Court of Queensland. The dispute centred around a claim by the plaintiff to receive a portion of the deceased's estate, which was contested by the defendant. The legal issues before the court were whether the plaintiff, having been unsuccessful in his application, should be ordered to pay the defendant's costs and if so, whether the court should exercise its discretion to order the plaintiff to pay the defendant's costs.

The court considered the relevant provisions of the Family Provision Act and the principles governing costs in litigation. The court held that an unsuccessful plaintiff should be ordered to pay the defendant's costs in Family Provision Act proceedings, where the Act itself did not expressly exclude such an order. The court further found that the discretion to order costs should be exercised judiciously and only in cases where the plaintiff's claim was frivolous, vexatious, or an abuse of the court process. The court found that the plaintiff's claim was neither frivolous nor vexatious, and therefore declined to order the plaintiff to pay the defendant's costs.

Orders