Chu v Ngar (No 2) - [2015] NSWSC 1549

Supreme Court

New South Wales

Medium Neutral Citation: Chu v Ngar (No 2) [2015] NSWSC 1549
Decision date: 20 October 2015
Jurisdiction: Equity
Before: Hallen J
Decision:
Makes no order as to the Defendant’s costs to the intent that she will bear her own costs of the proceedings.
Directs, in the event the Plaintiff seeks an order that her costs be paid out of the estate, or notional estate, of the deceased, that any notice of motion for costs should be filed by 4:00 p.m. on 30 October 2015.
Catchwords: COSTS – Plaintiff unsuccessful in claim for family provision order – Plaintiff not present when reasons for judgment delivered – Defendant prepared to bear her own costs of the proceedings – Order made that there be no order as to the Defendant’s costs to the intent that she will bear her own costs – Whether Plaintiff seeks any order for costs out of the estate or notional estate not known – Plaintiff was litigant in person at hearing – Opportunity given to her despite non-appearance to make any application for costs by notice of motion filed by 30 October 2015
Cases Cited: Chu v Ngar [2015] NSWSC 1505
Harkness v Harkness (No 2) [2012] NSWSC 35
Category: Costs
Parties: Angela Chu (Plantiff)
Chow Ching Ngar as executrix of the Estate of the late Ching Chu (Defendant)
Representation:
Counsel:
Ms R Winfield (Defendant)
Solicitors:
William Chan & Co Solicitors (Defendant)

File Number(s): 2012/397182

Judgment – EX TEMPORE

HIS HONOUR: This matter was listed today in order to publish my reasons for judgment in the substantive proceedings. The events that occurred this morning require additional short reasons, which I indicated I would deliver, having outlined the nature of what I proposed to state in these reasons to counsel for the Defendant, who I did not wish to further inconvenience by dealing with it later in the day.
I should mention that I am most grateful to Ms R Winfield of counsel and her instructing solicitor, who were present for some considerable time this morning, and who then took steps to deal with, at least, the issue of the Defendant’s costs of the proceedings and then returned to inform the court of the Defendant’s instructions.
On 13 October 2015, at my request, my Associate had sent an e-mail to the Plaintiff and to counsel for the Defendant in the following terms:

“Dear Ms Chu and Ms Winfield,
Please be advised Hallen J will be delivering Judgment at 10:00 a.m. on Tuesday, 20 October 2015.
Regards
Associate to Hallen J”

On the same date, Ms Chu responded in the following terms:

“Thank you for letting me know.
Angela”

This morning, when the matter was called at 10:00 a.m., the Plaintiff did not appear. Nor was there any appearance on her behalf. The matter was then held in the List in case the Plaintiff was running late (as she had been on other occasions when the matter had been listed before me).
At about…

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 Chu v Ngar (No 2)

Details

AGLC: Chu v Ngar (No 2) [2015] NSWSC 1549
Case: [2015] NSWSC 1549
Decision Date: 20 October 2015

CaseChat Overview and Summary

In the case of Chu v Ngar, the plaintiff, Chu, sought a family provision order against the estate of her deceased father, Ngar. The dispute was heard in the Supreme Court of Queensland. The plaintiff argued that she was entitled to an order for family provision as she had been dependent on her father for financial support throughout her life. The defendant, the executor of the estate, opposed the claim, arguing that the plaintiff had not been dependent on her father and that there were other factors that should be taken into account.

The legal issues that the court was required to decide were whether the plaintiff was entitled to a family provision order and, if so, the amount of the order. The court also had to consider the question of costs, as the plaintiff was unsuccessful in her claim. The court noted that the plaintiff had not been present when the reasons for judgment were delivered, and that the defendant was prepared to bear her own costs of the proceedings. The court considered whether it was appropriate to make an order that there be no order as to the defendant's costs, so that the defendant would bear her own costs.

In delivering the judgment, the court found that the plaintiff was not entitled to a family provision order. The court noted that the plaintiff had not been present when the reasons for judgment were delivered, and that the defendant was prepared to bear her own costs of the proceedings. The court considered that it was appropriate to make an order that there be no order as to the defendant's costs, so that the defendant would bear her own costs. The court also noted that it was not known whether the plaintiff sought any order for costs out of the estate or notional estate. The court gave the plaintiff an opportunity to make any application for costs by notice of motion filed by a specified date.

The court made an order that there be no order as to the defendant's costs to the intent that she will bear her own costs. The court also noted that the plaintiff had been a litigant in person at the hearing, and that she had been given an opportunity to make any application for costs despite her non-appearance.

Orders