Chester v Cowin (No 2) - [2025] NSWSC 74

Supreme Court

New South Wales

Medium Neutral Citation: Chester v Cowin (No 2) [2025] NSWSC 74
Hearing dates: On the papers
Date of orders: 17 February 2025
Decision date: 17 February 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
[28]

Catchwords:
COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers – Whether plaintiffs’ rejection of offer of compromise unreasonable
SUCCESSION — Family provision — Nature of orders — Orders for provision – Right to occupy house until youngest child finishes school

Legislation Cited:
Probate and Administration Act 1898 (NSW)

Cases Cited:
Calderbank v Calderbank [1976] Fam 93
Chester v Cowin [2024] NSWSC 1554

Texts Cited:
Nil

Category: Consequential orders
Parties: Geraldine Ann Chester (First Plaintiff)
Matthew Wilson (Second Plaintiff)
Mitchell Wilson (Third Plaintiff)
CW (not his real name) by his tutor Geraldine Ann Chester (Fourth Plaintiff)
TW (not her real name) by her tutor Geraldine Ann Chester (Fifth Plaintiff)
Penelope Jayne Cowin (Defendant)
Representation:
Counsel:
S Brennan (Plaintiffs)
R Size (Defendant)
Solicitors:
AKC Legal (Plaintiffs)
Bryson Kelly (Defendant)

File Number(s): 2023/158098

JUDGMENT

These are my reasons for making orders to give effect to the conclusions I reached in Chester v Cowin [2024] NSWSC 1554, to which I will refer as the principal decision. I will use the same naming conventions as in those reasons. I will also deal with the question of costs.
In the principal decision, I said at [53] and [55]:

“[53] …I am satisfied that Geraldine and the two youngest children have not been left adequate provision because the estate does not allow them to continue to live in the Reindeer Place property. In my view, it is appropriate to make an order for further provision by granting them the right to occupy the house until such time as neither child is still in secondary school. However, I am not persuaded that they should be entitled to remain in the property at no cost to Geraldine...
…
[55] In the circumstances, the right of Geraldine and the two younger children to occupy the property should be subject to the following conditions:
(a) that Geraldine pays a fee equal to one-third of the market rental for the property;
(b) that Geraldine is solely responsible for the upkeep and maintenance of the property while ever she has the right to occupy the property. This includes the payment of insurance, rates, tax and utilities; and
(c) that Geraldine is entitled to allow Matthew and Mitchell to continue to live in the property while ever she has the right to occupy the property.”

I directed the parties to bring in agreed short minutes of order to give effect to these conclusions or, failing agreement, to make brief submissions as to the orders for which they contend. I also directed the parties to make submissions about costs.

Orders to give effect to my conclusions

The parties say that I should make orders for the Reindeer Place property to be transferred to the first…

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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Details

Case: [2025] NSWSC 74
Decision Date: 17 February 2025

CaseChat Overview and Summary

The case of Chester v Cowin (No 2) involved a dispute between the plaintiffs, the children of the deceased, and the defendant, the widow of the deceased. The children sought family provision orders from the estate of their father, which the widow opposed. The matter was heard in the Supreme Court of New South Wales. The central legal issues revolved around the assessment of costs, specifically whether the plaintiffs' rejection of a compromise offer was unreasonable, and the nature of the family provision orders that should be granted.

The court had to determine whether the plaintiffs' rejection of a compromise offer made by the defendant was unreasonable under the relevant provisions of the Uniform Civil Procedure Rules. The plaintiffs had rejected a Calderbank offer, which was an offer to settle that included a statement that if the offer was not accepted and the party making the offer was not successful, they would not be liable for the other party's costs. The court considered whether the rejection was unreasonable and whether it warranted an order for the plaintiffs to pay the defendant's costs.

In delivering the judgment, the court held that the plaintiffs' rejection of the compromise offer was unreasonable. The court found that the plaintiffs had not acted reasonably in rejecting the offer, which could have resolved the matter and potentially saved costs. The court ordered the plaintiffs to pay the defendant's costs of the proceeding, as the rejection of the offer was deemed unreasonable. Regarding the family provision orders, the court granted orders for the plaintiffs to be provided with a sum of money from the estate and the right to occupy the family home until the youngest child finished school.

The final orders of the court included a direction that the plaintiffs pay the defendant's costs of the proceeding and the aforementioned family provision orders. This decision highlights the importance of considering the implications of rejecting a compromise offer and the potential consequences in terms of costs.

Orders