Christopherson v Wright; Christopherson v Wright - [2024] NSWSC 1327

Supreme Court

New South Wales

Medium Neutral Citation: Christopherson v Wright; Christopherson v Wright [2024] NSWSC 1327
Hearing dates: On the papers, last submissions received 27 September 2024
Date of orders: 22 October 2024
Decision date: 22 October 2024
Jurisdiction: Equity
Before: Pike J
Decision:
In proceedings 2023/00057341
(1)   Provision to be made for the plaintiff out of the Deceased’s estate in the amount of $300,000.
(2)   Plaintiff’s costs be paid out of the Deceased’s estate on the ordinary basis.
(3)   Defendant’s costs be paid out of the Deceased’s estate on the indemnity basis.
In proceedings 2023/00094925
(1)   First plaintiff’s claim dismissed.
(2)   First plaintiff to pay the defendants’ costs of the first plaintiff’s claim.
(3)   Second plaintiff’s claim dismissed.
(4)   Second plaintiff to pay the first defendant’s costs of the second plaintiff’s claim.
(5)   First defendant’s costs to be paid out of the Deceased’s estate on the indemnity basis.

Catchwords:
COSTS – costs order – two related family provision proceedings heard together – where plaintiff in one proceedings was successful and plaintiffs in other proceedings were unsuccessful – where successful plaintiff has agreed orders – where unsuccessful plaintiffs seek to make submissions on orders in other proceedings – where onus on unsuccessful plaintiffs to persuade the Court that the overall justice of the case requires the exercise of the Court’s discretion to “otherwise order” – no question of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Uniform Civil Procedure Rules 2005 (NSW) rr 20.26 and 36.17
Succession Act 2006 (NSW) s 66

Cases Cited:
Bradley v Irvine; Irvine v Irvine (No 2) [2024] NSWSC 931
Christopherson v Wright; Christopherson v Wright [2024] NSWSC 1144
Haertsch v Whiteway (No 2) [2020] NSWCA 287

Texts Cited:
Nil

Category: Costs
Parties:
In proceedings 2023/00057431
Shane Christopherson (Plaintiff)
Sharon Ann Wright (Defendant)
In proceedings 2023/00094925
Craig Anthony Christopherson (First Plaintiff)
Pamela Jane Burne (Second Plaintiff)
Sharon Ann Wright (First Defendant)
Shane Christopherson (Second Defendant)
Representation:
Counsel:
In proceedings 2023/00057431
S Hughes (Plaintiff)
J Young (Defendant)

In proceedings 2023/00094925
L Clarke (Plaintiffs)
J Young (First Defendant)
S Hughes (Second Defendant)

Solicitors:
In proceedings 2023/00057431
Toby Tancred Solicitor (Plaintiff)
Blackwell Short (Defendant)
In proceedings 2023/00094925
Maurice Buckley, C.T. Poole and Son Solicitors (Plaintiffs)
Blackwell Short (First Defendant)
Toby Tancred Solicitor (Second Defendant)

File Number(s): 2023/00057431 and 2023/00094925
Publication restriction: Nil

JUDGMENT

On 9 September 2024, I delivered judgment in these proceedings: see Christopherson v Wright; Christopherson v Wright [2024] NSWSC 1144 (Principal Judgment). These reasons assume familiarity with and maintain the same defined terms as used in the Principal Judgment.
In the Principal Judgment, I determined that Shane should receive an order for provision in the sum of $300,000 and that Pamela and Craig’s claims should be dismissed. I directed the parties to seek to agree orders to give effect to my findings in the Principal Judgment, including as to costs, and that failing agreement, to provide submissions and supporting material, whereupon I would determine any remaining issues on the papers.

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 Christopherson v Wright; Christopherson v Wright

Details

AGLC: Christopherson v Wright; Christopherson v Wright [2024] NSWSC 1327
Case: [2024] NSWSC 1327
Decision Date: 22 October 2024

CaseChat Overview and Summary

In the case of Christopherson v Wright, the court was presented with two related family provision proceedings heard together. The disputes involved family members seeking to claim against the estate of a deceased person. The case was heard in the Family Court of Australia. The successful party in one of the proceedings was the plaintiff, while the plaintiffs in the other proceedings were unsuccessful.

The primary legal issue before the court was the determination of costs in relation to these two proceedings. Specifically, the court had to consider the costs orders in light of the differing outcomes for the plaintiffs in the two related matters. The court also needed to assess whether the unsuccessful plaintiffs were entitled to make submissions on the costs orders in the other proceeding, and if so, whether such submissions warranted a different outcome in the costs order.

The court considered that the successful plaintiff had agreed to certain costs orders, which provided a starting point for the determination of costs. The unsuccessful plaintiffs, however, sought to influence the costs orders in the other proceeding, arguing that the overall justice of the case required a different outcome. The court held that the unsuccessful plaintiffs had the onus of persuading the court that the overall justice of the case required the exercise of the court’s discretion to “otherwise order” in relation to the costs. Given that no question of principle was raised, the court adhered to the agreed costs orders for the successful plaintiff and did not alter the costs orders for the unsuccessful plaintiffs. The court concluded that the overall justice of the case did not warrant a deviation from the agreed costs orders.

Orders