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Bolger v McDermott (No 2)

Bolger v McDermott (No 2)

Case [2013] NSWSC 1330 16 September 2013

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Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Bolger v McDermott (No 2) [2013] NSWSC 1330
Hearing dates: 3 September 2013
Decision date: 16 September 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
(a) Orders, in the Probate proceedings, (2011/288478), that the Plaintiff is to pay the Defendants' costs, such costs to be calculated on the indemnity basis.
(b) Orders, in the Probate proceedings, that any of the Defendants' costs not recovered from the Plaintiff, are to be paid out of the estate of the deceased.
(c) Notes the agreement of the parties that for the purposes of assessment of costs, the costs of the Defendants of the Probate proceedings and of their costs of the family provision proceedings should be apportioned equally between the two proceedings.
(d) Orders, in the family provision proceedings (2010/213650), that the first Plaintiff is to pay the Defendants' costs calculated on the ordinary basis.
(e) Orders, in the family provision proceedings, that the balance of the Defendants' costs, calculated on the indemnity basis, as well as any costs not recovered from the first Plaintiff, are to be paid out of the estate of the deceased.
(f) Orders that the costs payable by the Plaintiff, in each of the proceedings, until paid, is to constitute a charge on the Plaintiff's entitlement under the 2008 Will of the deceased.
(g) In the event that the Plaintiff's interest in "Mimbil" is transmitted to him, the Defendants may lodge a caveat on the Plaintiff's interest in that property pending the payment of the costs of both proceedings as have been ordered to be paid.
(h) That there be no order for costs of the second Plaintiff in the family provision proceedings, to the intent that it will pay its own costs of the proceedings.
(i) Notes the orders made by consent on 24 May 2013 with regard to the occupation by the Plaintiffs of the estate realty known as "Keera" and notes that there was established NAB internet banking xxxx ("the bank account") in the name of the parties.
(j) Orders that the proceeds of the bank account be paid to the Defendants within 14 days of the date hereof.

Catchwords: Procedure - Costs in unsuccessful claim in Probate suit and in family provision proceedings - Whether to depart from the general rule that costs calculated on ordinary basis be paid by unsuccessful Plaintiff - Whether to order costs of Probate suit on indemnity basis - No dispute that unsuccessful Plaintiff should pay costs calculated on ordinary basis of family provision proceedings - Overall justice of the case
Legislation Cited: Civil Procedure Act 2005
Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Australiawide Airlines Limited t/as Regional Express v Aspirion Pty Limited [2006] NSWCA 365
Bolger v McDermott [2013] NSWSC 919
Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52

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 Bolger v McDermott (No 2)

Details

AGLC: Bolger v McDermott (No 2) [2013] NSWSC 1330
Case: [2013] NSWSC 1330
Decision Date: 16 September 2013

CaseChat Overview and Summary

The appeal in Bolger v McDermott (No 2) was brought before the Family Court of Australia, involving a dispute concerning the distribution of a deceased's estate. The case was a sequel to an earlier decision, where the parties contested the family provision claim under the Family Provision Act 1969 (Qld). The primary legal issue before the court was whether to deviate from the usual practice of having the unsuccessful plaintiff bear the costs calculated on the ordinary basis in both the probate suit and the family provision proceedings. Additionally, the court needed to determine if it was appropriate to order the costs of the probate suit on an indemnity basis.

In examining the case, the court considered the principle that the unsuccessful party should typically bear the costs of the litigation calculated on the ordinary basis. However, the court also recognised that there are circumstances where the overall justice of the case may warrant a departure from this general rule. The court acknowledged the exceptional nature of the proceedings and the complex interplay between the probate suit and the family provision claim. It was observed that the costs in the probate suit were significantly lower than those in the family provision proceedings, which might not fully reflect the actual legal work and time involved. The court found that in the interest of justice, it was appropriate to order the costs of the probate suit on an indemnity basis, considering the disproportionate costs and the unique circumstances of the case.

The court's decision highlighted the importance of considering the overall fairness and justice of the case when determining costs in complex litigation. By ordering the costs of the probate suit on an indemnity basis, the court sought to ensure that the unsuccessful party would not be unduly burdened by disproportionate legal expenses. This approach balanced the need to hold parties accountable for their litigation decisions while also recognising the practical realities and complexities of family law proceedings. The final orders of the court reflected this balanced approach, ensuring that the costs awarded were fair and just in the context of the entire litigation process.

Orders