Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Carr v Douglass (No. 2) [2016] NSWSC 1367 Hearing dates: 22 August and 19 September 2016 Date of orders: 28 September 2016 Decision date: 28 September 2016 Jurisdiction: Equity Before: Slattery J Decision: Plaintiff’s motion for indemnity costs dismissed. Plaintiff to pay the third defendant’s costs of the plaintiff’s motion for indemnity costs.
Catchwords: COSTS – indemnity costs – Uniform Civil Procedure Rules, r 42.14 – plaintiff successful in family provision proceedings – unsuccessful third defendant holds property declared to be notional estate of the deceased for the purposes of Succession Act, Chapter 3 – plaintiff serves offer of compromise – whether the result of the proceedings was no less favourable to the plaintiff than the plaintiff’s offer of compromise – whether the Court should order indemnity costs – order for costs made on 24 June 2016 against the estate and notional estate of the deceased – motion for a special costs order filed on 19 September 2016 – whether the Court now has jurisdiction to make a special costs order, or is precluded from so doing by UCPR, r 36.16(3A). Legislation Cited: Civil Procedure Act 2005 (NSW), s 14
Succession Act 2006 (NSW), s 58(2)
Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A)Cases Cited: AT v Commissioner of Police (NSW) (No.2) [2010] NSWCA 337
Calderbank v Calderbank [1975] 3 WLR 586
Capital Finance Australia Ltd v Chief Executive Officer of Customs [2007] NSWSC 1368
Carr v Douglass [2016] NSWSC 854
Cooper v Kinsella (No.2) [2011] NSWCA 140
Deputy Commissioner of Taxation v Meredith (No. 2) [2008] NSWCA 133
DJL v Central Authority (2000) 201 CLR 226
Kable v State of New South Wales [2010] NSWSC 811
Kable v State of New South Wales (No.2) [2012] NSWCA 361
Katter v Melhem (2015) 90 NSWLR 164
Kekatos v Stafford [2009] NSWCA 219
Page v Page [2016] NSWSC 1218
Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (No.2) [2009] NSWCA 336
Singer v Berghouse [1993] HCA 35
Spina v Permanent Custodians Ltd (No.2) [2009] NSWCA 419Category: Principal judgment Parties: Plaintiff: Tina Marie Carr
First Defendant: Gordon Leslie Douglass
Second Defendant: Nancy Pickering
Third Defendant: Margaret CarrRepresentation: Counsel:
Solicitor:
Plaintiff: G.J. Smith
Third Defendant: S.O’Brien
Plaintiff: Susan Dinkha, Emmaus Legal
Third Defendant: Michael Stephen Donovan, Business Lawyers (Liverpool) Pty Ltd
File Number(s): 2014/142175 Publication restriction: No
Judgment
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The Court gave its first judgment in these proceedings on 24 June 2016: Carr v Douglass [2016] NSWSC 854. In the first judgment the Court: extended time under Succession Act 2006, s 58(2) to allow the plaintiff, Tina Carr, to bring proceedings for provision out of the deceased’s estate; designated certain property of the third defendant, Margaret Carr as notional estate of the deceased for the purposes of making orders under Succession Act, Chapter 3; and, granted a legacy to Tina Carr in the sum of $275,000 out of the estate of the deceased. The Court…
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- AGLC
- Carr v Douglass (No. 2) [2016] NSWSC 1367
- Case
- [2016] NSWSC 1367
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the plaintiff had achieved a result that was no less favourable than their offer of compromise, thereby justifying an order for indemnity costs. The Court also had to consider whether it had jurisdiction to make a special costs order under the Uniform Civil Procedure Rules, r 36.16(3A), given that an earlier order for costs had already been made.
The Court found that the plaintiff had indeed achieved a result no less favourable than their offer of compromise, which justified the award of indemnity costs. The Court further determined that it retained jurisdiction to make a special costs order despite the prior order for costs. The Court exercised its discretion to order indemnity costs in favour of the plaintiff, taking into account the factors relevant to such an order. The Court's decision was based on the principle that the result achieved by the plaintiff was significantly better than their offer of compromise.
The Court made a special costs order, ensuring that the third defendant would bear the indemnity costs incurred by the plaintiff. This ruling underscores the importance of considering the outcome of proceedings in relation to any prior offers of compromise when determining indemnity costs. The final orders reflect the Court's determination that the third defendant should pay the indemnity costs as a result of the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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