(1) Order 2 of the orders made by Henry J on 14 June 2022 be set aside and the following order be made in substitution:
(a) Subject to any costs orders already made in the proceedings, the plaintiff shall pay the defendant’s costs of the proceedings on the ordinary basis, capped at the sum of $50,000, as agreed or assessed.
(2) Each party is to bear their own costs of the applications for costs which is the subject of these reasons.
Catchwords:
COSTS – succession – claim by adult plaintiff for family provision – no provision orders – where defendant applies for indemnity costs – where plaintiff applies for each party to pay costs or cap on costs – Calderbank offers – Offers of Compromise – UCPR rr 20.26 and 42.15A – whether the Court should “otherwise order” – whether rejection of Calderbank offer unreasonable – impecuniosity – significant adverse impact on financial position – size of the estate – conduct of the hearing – indemnity costs not ordered – plaintiff is to pay defendant’s costs on the ordinary basis – cap on costs made
[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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AGLC
Brown v Brown (No 2) [2023] NSWSC 7
Case
[2023] NSWSC 7
Decision Date
CaseChat Overview and Summary
In Brown v Brown (No 2), the parties are engaged in a family provision dispute following the death of the deceased, who was the father of the adult plaintiff and the husband of the defendant. The plaintiff sought an order for family provision under the Succession Act 2006 (NSW), while the defendant opposed this application. The matter was heard in the Supreme Court of New South Wales. The defendant applied for indemnity costs, while the plaintiff sought an order for each party to bear their own costs or a cap on costs. Both parties made Calderbank offers, and the court had to determine whether it should "otherwise order" in relation to costs, whether the rejection of the Calderbank offer was unreasonable, and whether the plaintiff's impecuniosity and the significant adverse impact on her financial position justified a departure from the usual costs order.
The court examined the principles governing costs in family provision cases, including the statutory provisions and common law principles. It considered the size of the estate, the conduct of the hearing, and the Calderbank offers made by both parties. The court concluded that the rejection of the Calderbank offer was not unreasonable, and that the plaintiff's impecuniosity and the significant adverse impact on her financial position did not justify a departure from the usual costs order. The court held that the defendant was not entitled to indemnity costs, but that the plaintiff should pay the defendant's costs on the ordinary basis. The court also made a cap on costs order to ensure that the costs did not become excessive.
The final orders of the court were that the plaintiff was to pay the defendant's costs of the proceedings on the ordinary basis, with a cap on costs to be determined by agreement or by the court if necessary. The court did not order indemnity costs for the defendant, but recognised the importance of ensuring that the costs did not become excessive. The court also noted that the plaintiff's impecuniosity and the significant adverse impact on her financial position did not justify a departure from the usual costs order. The orders reflect the court's consideration of the principles governing costs in family provision cases, and its determination that the rejection of the Calderbank offer was not unreasonable.