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 419
Category: Principal judgment
Parties: Plaintiff: Tina Marie Carr
First Defendant: Gordon Leslie Douglass
Second Defendant: Nancy Pickering
Third Defendant: Margaret Carr
Representation:
Counsel:
Plaintiff: G.J. Smith
Third Defendant: S.O’Brien
Solicitor:
Plaintiff: Susan Dinkha, Emmaus Legal
Third Defendant: Michael Stephen Donovan, Business Lawyers (Liverpool) Pty Ltd

File Number(s): 2014/142175
Publication restriction: No

Judgment

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…

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 Carr v Douglass (No. 2)

Details

AGLC: Carr v Douglass (No. 2) [2016] NSWSC 1367
Case: [2016] NSWSC 1367
Decision Date: 28 September 2016

CaseChat Overview and Summary

In the case of Carr v Douglass, the plaintiff sought a declaration that certain property belonged to the notional estate of the deceased, and that the third defendant, who held the property, should account for it as such. The dispute came before the Supreme Court of New South Wales. The plaintiff was successful in their family provision proceedings, and the Court declared the property to be part of the deceased's notional estate. The third defendant, who was unsuccessful, was ordered to pay indemnity costs.

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