Bezjak v Wyatt (No 2) - [2018] NSWSC 232

Supreme Court

New South Wales

Medium Neutral Citation: Bezjak v Wyatt (No 2) [2018] NSWSC 232
Hearing dates: 28 February 2018
Date of orders: 28 February 2018
Decision date: 28 February 2018
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court orders that:
a) the Plaintiff is to pay the Defendant's costs, calculated on the ordinary basis, of the proceedings, up to and including 10 October 2017; and after 10 October 2017, the Plaintiff is to pay the Defendant’s costs, calculated on the indemnity basis, of the proceedings.
b) To the extent that the Defendant's costs, calculated on the indemnity basis, of the proceedings, are not paid by, or recovered from, the Plaintiff, those costs are to be paid, or retained, as the case may be, out of the estate of the deceased.

Catchwords: SUCCESSION – FAMILY PROVISION – COSTS – Following dismissal of the suit for family provision order – Offer of Compromise served about 2 months prior to the hearing – Defendant obtained order no less favourable than offer made – Whether Court’s discretion should be exercised to depart from UCPR – Overall justice of the case does not warrant exercise of the Court’s discretion.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: AB v Curry & Anor (No 2) [2015] NSWSC 1209
Bates v Cooke (2015) 14 ASTLR 221; [2015] NSWCA 278
Bates v Cooke (No 2) [2014] NSWSC 1322
Bezjak v Wyatt [2018] NSWSC 199
Briggs v Mantz (No 2) [2014] VSC 487
Bruce v Greentree (No 2) [2015] NSWSC 1636
Chapple v Wilcox [2014] NSWCA 392
Meres v Meres (No 2) [2017] NSWSC 523
Smith v Whittaker [2016] VSC 287
Category: Costs
Parties: Brigita Bridget Bezjak (Plaintiff)
James Rolin Wyatt (Defendant)
Representation:
Counsel:
Mr T J Morahan (Plaintiff)
Mr N Bilinsky (Defendant)
Solicitors:
Capital Lawyers (Plaintiff)
McPhee Kelshaw Solicitors (Defendant)

File Number(s): 2016/318272

Judgment – EX TEMPORE (revised)

HIS HONOUR: I have, earlier this afternoon, delivered reasons for judgment in the substantive proceedings, the medium neutral citation of which is Bezjak v Wyatt [2018] NSWSC 199. In those proceedings, I ordered that the Plaintiff's Summons be dismissed.
Following the publishing of those reasons, counsel agreed that I could deal with the issue of costs immediately.
On the application for indemnity costs, counsel for the Defendant tendered a copy of a letter dated 10 October 2017, from the Defendant’s solicitors, to the Plaintiff’s solicitors, to which was attached an Offer of Compromise, also dated 10 October 2017. The Defendant offered to pay to the Plaintiff the sum of $40,000 and her costs "as assessed or agreed to the time of this offer". The offer was said to be able to be accepted on or before 10 November 2017.
No evidence was tendered by counsel for the Plaintiff on the costs application.
There was no dispute that all questions of relief have been determined so that to the extent necessary, the offer made could be…

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: [2018] NSWSC 232
Decision Date: 28 February 2018

CaseChat Overview and Summary

Bezjak v Wyatt (No 2) involved a dispute between the parties regarding a claim for family provision under the Succession Act 2006 (NSW). The case was heard in the Supreme Court of New South Wales. The plaintiff, seeking a family provision order, was dissatisfied with the defendant's offer of compromise and proceeded to the hearing. However, the plaintiff's application was ultimately dismissed.

The central legal issue before the court was whether the discretion under the Uniform Civil Procedure Rules 2005 (NSW) should be exercised to allow costs to be awarded against the plaintiff despite the offer of compromise. The court had to consider whether the overall justice of the case warranted such an exercise of discretion. Specifically, the court examined the timing of the offer, which was made approximately two months before the hearing, and the fact that the defendant obtained an order no less favourable than the offer made.

The court concluded that the overall justice of the case did not necessitate the exercise of its discretion to award costs against the plaintiff. The timing of the offer of compromise and the outcome of the case were central to the court's reasoning. The court found that the circumstances did not justify departing from the usual application of the rules, and thus, the plaintiff was not ordered to pay the defendant's costs.

Orders