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

1. 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.

2. 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.

3. The parties in the Shane proceedings were able to agree orders.

4. The parties in the Craig and Pamela proceedings were not able to agree orders. Craig and Pamela also sought to be heard on costs in Shane’s proceedings and proposed certain orders.

5. Craig and Pamela also sought further substantial orders, purportedly pursuant to s 66 of the Act, which I separately consider below.

6. As such, these reasons determine the appropriate final orders in each of the proceedings.

Overview of the position of the parties on costs and their contentions

7. As set out above, the parties in the Shane proceedings agreed orders, including as to costs. Relevantly, they agreed that:

1. Provision to be made for the Plaintiff out of the Deceased’s estate in the amount of $300,000.

2. The Plaintiff’s costs be paid out of the Deceased’s estate on the ordinary basis.

3. The Defendant’s costs be paid out the Deceased’s estate on the indemnity basis.

8. In respect of costs, Craig and Pamela primarily sought the following orders:

1. Order that the offer of compromise made by the Deceased’s estate to Shane dated 1 July 2024 be upheld.

2. Order that Shane bear his own costs of the proceedings.

3. Craig and Pamela’s costs in the Craig and Pamela proceedings be borne on an ordinary basis by the Deceased’s estate.

4. Any application for costs sought by Shane in Shane’s proceedings against Craig be dismissed.

5. Any application for costs sought by the Deceased’s estate against Craig be dismissed.

9. Alternatively, Craig sought an order that Shane’s costs be capped and that any costs burden be borne totally by Craig and not Pamela.

10. In relation to order (1), Craig contends that Shane should have accepted an offer made to him by Sharon on 1 July 2024, which, although not compliant with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), sought to resolve the Shane proceedings by offering $325,000 inclusive of costs, or $250,000 exclusive of costs. Craig contends that, had Shane accepted this Calderbank offer, which it is said is far greater than what Shane received as further provision in the Principal Judgment, Craig’s claim, as a claimant with competing circumstances, would have fallen away.

11. Craig otherwise contended, in substance, that it was necessary for him to seek to uphold the release (he did not stand to obtain a financial advantage in so doing) and also to raise his circumstances as a competing claimant such that his costs should be borne by the estate. In addition, or perhaps alternatively, Craig contended that the costs of the proceedings should be borne by the estate because, in effect, it was the conduct of the Deceased that had led to the proceedings.

12. Pamela also contended that she was very much an innocent bystander whose claim, whilst ultimately not successful, had merit and justified the attention of the Court. As such, Pamela contended that her costs should also be paid by the estate.

13. Shane contended that the offer did not assist Craig. The amount ultimately received by Shane was for greater than the offer, it was not expressed as a Calderbank offer and Craig was not in fact a party to the offer.

14. Otherwise, Shane’s position was that Craig had failed in all of his claims and costs should follow the event, with Craig being ordered to pay Shane’s costs of the Craig and Pamela proceedings. It is not correct to assert that Craig did not stand to obtain a financial advantage by seeking to uphold the release. The estate took a similar position in relation to Craig.

15. In relation to Pamela, the estate’s position was that she had failed in her claim and there was no reason why costs should not follow the event.

16. The estate contended that the appropriate orders in the Craig and Pamela proceedings are:

1. The first plaintiff’s claim is dismissed.

2. The first plaintiff pay the defendants’ costs as agreed or assessed.

3. The second plaintiff’s claim is dismissed.

4. The second plaintiff pay the defendants’ costs as agreed or assessed.

5. The first defendant’s costs shall be paid out of the estate on the indemnity basis.

Substantive orders sought by Craig

17. In addition to proposing costs orders, Craig also sought 13 additional orders, purportedly pursuant to s 66 of the Act. These orders were directed at what might loosely be described as finalisation of the estate of the Deceased and included:

1. the transfer of certain lots by the estate to Craig in partial distribution of his legacy under the Will;

2. an order restraining Sharon, as executor, from continuing with the proposed subdivision and an order that she personally pay the costs incurred in relation to that subdivision;

3. orders to the effect that the estate pay Pamela half of the assessed value of the House Block;

4. orders effecting the sale of the remainder of the lots comprising the Vale;

5. orders for a clearance sale to be conducted of all farming machinery and the like; and

6. orders for a final distribution to be made.

18. Craig sought to rely on a further affidavit made by him in support of these orders.

19. In support of these orders, it was contended that Craig had previously sought the transfer of the lots to him and expected that Sharon would agree but she has not. These lots are asserted to be necessary for the conduct of Craig’s business. As regards the proposed subdivision, Craig continued to assert that Sharon was behaving wrongly as executor in pursuing it. As regards Pamela, the contention is the orders sought are, in effect, the only method she has to extract herself from her present position.

20. The estate opposed all of these orders and objected to Craig having leave to rely on his further affidavit in the absence of any application to reopen. The estate raised a number of matters including that none of the matters raised were pleaded, s 66 does not provide a source of power for the orders and they fail for want of evidence in any event.

21. There is no basis for the Court to grant any of the 13 orders sought by Craig and Pamela. They extend beyond the orders made in the Principal Judgment. The proposed substantive orders do not seek to give effect to the conclusions reached in the Principal Judgment. Rather, in relation to the transfer of the lots to Craig and the orders sought in relation to the subdivision, they seek to reagitate matters which were sought to be argued by way of proposed amendment during the hearing, which matters were not pursued.

22. The orders now sought should have been squarely raised prior to the hearing so they could have been dealt with. Most, if not all, would likely have been the subject of evidence. It is not appropriate to raise them now. No application to reopen has been made.

23. Although not necessary to decide, it is also far from clear that s 66 of the Act provides a basis for the Court to make the orders sought. Craig’s provision claim has been dismissed. It is also not necessary to make any of the orders to give effect to the order for provision made in Shane’s favour.

24. I therefore decline to make any of the additional orders sought.

Pamela’s application under the slip rule

25. Pamela also sought an order that, pursuant to r 36.17 UCPR, all references to “daughter-in-law” and “father-in-law” be removed from the Principal Judgment. It was contended that these references were wrong and caused deep offence.

26. The term “daughter-in-law” was used once in the catchwords and the term “father-in-law” was used once at [192] of the Principal Judgment in relation to a proposition put to Pamela in cross-examination.

27. No offence was intended by the use of these expressions. They were intended to reflect the reality of the relationship and the reference at [192] reflects the proposition put. Craig admitted the relationship of the Deceased and Pamela was that of de facto father and daughter-in-law. Pamela also admitted this on at least one occasion in cross-examination. There is thus nothing to correct.

28. I now turn to consider the costs orders.

Relevant legal principles as to costs

29. The relevant legal principles in relation to costs are not in dispute. The starting point is s 98 of the Civil Procedure Act 2005 (NSW), which provides that the issue of costs is in the broad discretion of the Court.

30. I recently summarised the relevant legal principles in relation to costs orders in family provision cases where offers of compromise have been made in Bradley v Irvine; Irvine v Irvine (No 2) [2024] NSWSC 931 at [19]ff. I do not propose to repeat what I there said.

Determination on costs

31. It is appropriate to separately consider the two sets of proceedings. Although they were heard together, Shane did not take an active role in relation to Pamela’s claim.

32. In relation to Shane’s proceedings, the orders agreed between Shane and the estate should be made.

33. The principal matter raised by Craig – the offer dated 1 July 2024 – does not assist Craig. The simple point is that Shane has done better than the offer in the proceedings.

34. The offer proceeded on an assumed basis that Shane’s costs were $75,000. This was not correct. Ignoring costs, the offer was to pay Shane $250,000 by way of provision. The Court awarded him $300,000.

35. In those circumstances, there is no reason why Shane’s costs should not be paid out of the estate on the ordinary basis. It is not appropriate in the circumstances, and on the material before the Court, to cap Shane’s costs.

36. There is no reason why the estate’s costs should not be paid out of the estate on the indemnity basis.

37. In the Craig and Pamela proceedings, the orders sought by the estate, as set out above, but with one exception, should be made. The exception concerns the order against Pamela. In circumstances where Shane did not play any active role in Pamela’s proceedings, Pamela should only be ordered to pay the first defendant’s costs.

38. Insofar as Craig contends that the 1 July 2024 offer should have been accepted by Shane, thus removing the need for Craig to seek to uphold the release or raise his circumstances as a competing claimant, I have dealt with this above. Shane has done better than the offer.

39. Contrary to his submission, Craig was seeking a financial advantage in contending that the release be upheld. Craig was not duty bound to seek to uphold the release. He did not do so in Darien’s earlier claim. He raised this issue at his risk, and he lost. Given the value of the Deceased’s estate and Craig’s individual financial position, Craig’s contentions were always difficult to maintain. Craig’s ready concession in cross-examination reflects this. There is no reason why costs should not follow the event.

40. Similarly, Craig raised his circumstances as a competing claimant and contending that any provision for Shane should come from Sharon, at his risk. Craig effectively abandoned these contentions in his answers in cross-examination and they did not succeed. There is no reason why costs should not follow the event.

41. Insofar as Pamela is concerned, it is not correct to characterise her position as an innocent bystander. Pamela pursued her estoppel claim against the estate in her own interest. She failed in establishing this claim. Again, there is no reason why costs should not follow the event. There is no reason why an order should be made against Craig and not Pamela, even if Craig has suggested this. There is nothing to prevent Craig satisfying Pamela’s liability if he wishes to do so.

42. It is also not correct to characterise these proceedings as being entirely due to the conduct of the Deceased. Craig and Pamela pursued claims in their own interests and did not succeed. There is no reason why they should not pay the costs. Such orders reflect the overall justice of the proceedings.

43. In proceedings 2023/00057431, the orders of the Court are:

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.

44. In proceedings 2023/00094925, the orders of the Court are:

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.

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Decision last updated: 22 October 2024