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Bruce v Greentree (No 2)

Bruce v Greentree (No 2)

Case [2015] NSWSC 1636 6 November 2015

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bruce v Greentree (No 2) [2015] NSWSC 1636
Hearing dates: 4 November 2015
Date of orders: 04 November 2015
Decision date: 06 November 2015
Jurisdiction: Equity
Before: Hallen J
Decision:
Order the Plaintiffs to pay the Defendant’s costs, calculated on the ordinary basis.

Catchwords:
PROCEDURE – Costs in unsuccessful claim for a family provision order by two Plaintiffs – Virtually no estate of the deceased and if property designated as notional estate, the value thereof was no more than $122,500 gross – Designating order not made
General rule as to costs on dismissal of proceedings – Whether to depart from the general rule that costs follow the event – Whether indemnity costs should be ordered – Overall justice of the case
Legislation Cited: Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bruce v Greentree [2015] NSWSC 1611
Carey v Robson; Nicholls v Robson (No 2) [2009] NSWSC 1199
Friend v Brien (No 2) [2014] NSWSC 614
Harkness v Harkness (No 2) [2012] NSWSC 35
Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
Category: Costs
Parties: Kim Katherine Bruce (first Plaintiff)
Paul Neville Greentree (second Plaintiff)
Irene Greentree (Defendant)
Representation:
Counsel:
Ms A Power (Plaintiffs)
Mr J E F Brown (Defendant)
Solicitors:
Leverage Solicitors (Plaintiffs)
Marsdens Law Group (Defendant)

File Number(s): 2013/272826

Judgment

HIS HONOUR: In this matter, I delivered reasons for judgment on 4 November 2015, the medium neutral citation of which is Bruce v Greentree [2015] NSWSC 1611 (“the principal judgment”).
In the principal judgment, I determined that each Plaintiff’s claim for a family provision order should be dismissed. The decision was based upon, amongst other things, the Plaintiffs not having satisfied me that there was “sufficient cause” for extending the time for the making of the application by each of them; there was virtually no actual estate out of which an order could be made; the value of the property that could be designated as notional estate if a designating order were made (which was not) was tiny; the terms of an open offer made by the Plaintiffs during the course of the hearing suggested that the claim, in each case, was not to satisfy any “need” of each Plaintiff; and the competing moral claim of the Defendant as the sole beneficiary entitled on intestacy.
Another part of the Plaintiffs’ claim, which was for a declaration that certain property was held on trust, was dismissed at the commencement of the hearing because the Plaintiffs did not wish to pursue it. I dealt with the costs of that part of the proceedings at the time the court was informed that such relief sought in the Statement of Claim could be dismissed.
The remaining outstanding matter before the Court, upon which the parties were unable to agree, relates to the costs of the balance of the proceedings. When my Associate informed the parties, by counsel, of the date…

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 Bruce v Greentree (No 2)

Details

AGLC: Bruce v Greentree (No 2) [2015] NSWSC 1636
Case: [2015] NSWSC 1636
Decision Date: 06 November 2015

CaseChat Overview and Summary

The proceedings in Bruce v Greentree (No 2) involved two plaintiffs seeking a family provision order against the estate of a deceased person. The court was tasked with determining whether the deceased had made adequate provision for the plaintiffs, considering the estate's virtual non-existence. The High Court of Australia was called upon to decide on the issue of costs in this unsuccessful claim.

The legal issues that the court had to address were whether the general rule that costs follow the event should be departed from and whether indemnity costs should be ordered in light of the overall justice of the case. The court considered the circumstances of the case, including the value of the estate and the fact that a designating order was not made.

In its reasoning, the court held that the general rule of costs following the event should be adhered to, except in cases where there are compelling reasons to depart from it. The court recognised that the plaintiffs' claim was largely unsuccessful, and the estate's value was minimal. Given these factors, the court deemed it appropriate to order costs in the usual way. The court also considered the principle of overall justice in the case and concluded that it was not necessary to order indemnity costs in this instance.

The court's decision resulted in the plaintiffs being ordered to pay the defendants' costs of the proceedings, in accordance with the general rule. The court found that there were no compelling reasons to depart from the general rule, and ordering indemnity costs would not be just and equitable in the circumstances.

Orders