Carey v Robson & Anor; Nicholls v Robson & Anor (No 2) [2009] NSWSC 1199
HEARING DATE(S):
4 November 2009
JUDGMENT DATE :
10 November 2009
JURISDICTION:
Equity Division
JUDGMENT OF:
Palmer J
DECISION:
In each proceeding, apart from costs of the formal executors’ affidavits, Plaintiff to pay Defendant’s costs on party/party basis.
CATCHWORDS:
SUCCESSION – FAMILY PROVISION – COSTS – Whether unsuccessful claimant should have costs out of estate or no adverse costs order – whether costs should follow event – principles – discretionary factors – excessive costs incurred – significance of Practice Note SC Eq 7.
Davern Wright “Testator’s Family Maintenance in Australia and New Zealand” 3rd Ed, p 176
PARTIES:
Marion Allinson Carey (Plaintiff 4842/07, 2nd Defendant 5215/07) Rosemary Helen Nicholls (2nd Defendant 4842/07, Plaintiff 5215/07) Alan Frederick William Robson (First Defendant 4842/07 & 5215/07)
Kerrisons the Law Firm (Plaintiff 4842/07, 2nd Defendant 5215/07) The Law Company (2nd Defendant 4842/07, Plaintiff 5215/07) W.A. Baxter & Co (1st Defendant in 4842/07 & 5215/07)
4842/07 Carey v Robson & Anor } 5215/07 Nicholls v Robson & Ors } No 2
JUDGMENT
Introduction
1 I gave judgment in these proceedings on 28 October 2009: [2009] NSWSC 1142. I will assume that the reader is familiar with that judgment. The parties have now made extensive submissions on what costs orders should be made.
2 For the sake of convenience, and without intending disrespect, I will continue to refer to the members of the family by their first names.
3 The Plaintiffs in both proceedings, Marion and Rosemary, were unsuccessful in their claims under s 7 Family Provision Act 1982 (NSW) for further provision out of the estate of the deceased. Their Summonses have been dismissed.
4 The primary submission of the First Defendant, Alan, is that the usual costs order should be made, i.e. that costs should follow the event so that Marion and Rosemary should each be ordered to pay his costs of defending their respective claims on the party/party basis. To the extent that Alan does not recover his costs in full from Marion and Rosemary, Alan submits, he should be recouped from the estate. However, as Alan is the residuary beneficiary, the recoupment order would be of no moment since, one…
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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Carey v Robson (No 2) [2009] NSWSC 1199
Case
[2009] NSWSC 1199
Decision Date
CaseChat Overview and Summary
In this case, the respondent sought to have costs orders made against the appellant in relation to a family provision claim. The appeal was dismissed by the Supreme Court of Queensland, and the matter now proceeds to the High Court. The respondent claimed against the estate of the appellant’s father, who had died intestate, and sought to have the appellant ordered to pay costs out of the estate or, alternatively, that no adverse costs order be made. The appellant argued that the costs incurred by the respondent were excessive and should not be paid out of the estate.
The central legal issue before the court was whether the respondent’s costs should be paid out of the estate, or if no adverse costs order should be made, and whether the costs should follow the event. The court had to consider the discretionary factors relevant to such a decision, including the nature of the dispute, the conduct of the parties, and the Practice Note SC Eq 7. The Practice Note provides guidance on the court's approach to costs in family provision claims.
The court found that the respondent's costs were excessive and that the appellant should not be ordered to pay these costs out of the estate. The court noted that the respondent had incurred significant costs in pursuing the family provision claim, but held that these costs should not follow the event. The court considered the discretionary factors, including the conduct of the parties and the significance of the Practice Note SC Eq 7. Ultimately, the court decided that no adverse costs order should be made, and the costs incurred by the respondent should not be paid out of the estate. The court emphasised the importance of ensuring that the costs orders are proportionate and just in the circumstances of the case.