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

1. 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.

2. 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.

3. 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”

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

“Thank you for letting me know.

Angela”

5. 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).

6. At about 10:45 a.m., the Defendant’s counsel having waited all that time, the matter was again called outside the Court. There was no appearance by, or on behalf of, the Plaintiff.

7. Having been given notice of my intention to publish my reasons, I then announced my orders and published my reasons which bear the medium neutral citation Chu v Ngar [2015] NSWSC 1505. Subsequently, a copy of the reasons for judgment has been sent to the Plaintiff.

8. As will be read, I ordered that the Plaintiff’s Summons be dismissed. I did not determine the question of costs in the reasons for judgment as I had been requested to not do so.

9. Having announced the orders that I had made, and having published reasons, I raised the question of costs with counsel for the Defendant. I asked whether the Defendant was seeking her costs of the proceedings, and I indicated, as I was about to depart on long leave, I would not be able to deal with any application for costs until my return, in February 2016.

10. Ms Winfield stated that she would seek instructions from the Defendant who was currently in Hong Kong. Before she departed to do so, the matter was again called, but there was still no appearance by, or on behalf of, the Plaintiff.

11. When Ms Winfield returned, at 12:00 noon, the matter was called, yet again, outside the Court, but there was still no appearance by, or on behalf of, the Plaintiff. I was then informed by counsel that the Defendant did not wish to make any application for the Plaintiff to pay the Defendant’s costs, and she stated that the Defendant was prepared to bear her own costs of the proceedings.

12. In the circumstances I then made no order as to the Defendant’s costs, to the intent that she bear her own costs of the proceedings.

13. As the Plaintiff was not present, as she had represented herself at the hearing, and as I did not know what application, if any, she might make in relation to her costs, I did not make any order in relation to those costs. (In this regard, I had stated in the reasons for judgment that costs would be dealt with at a mutually convenient time.)

14. I considered that if the Plaintiff wished to make an application that her costs be paid out of the estate, or the notional estate, of the deceased, then, since she was not present today, she should do so by notice of motion, although, as I have said, I shall not be able to deal with any application until my return from long leave in February 2016. If she does not seek any order, she will not have to do anything.

15. In my view, any notice of motion for costs should be filed by 4:00 p.m. on Friday, 30 October 2015 and I so order.

16. What I have said above is not intended to encourage the Plaintiff to make such an application. In this regard, for her assistance, I indicate that I have dealt with the principles that apply where an applicant for a family provision order is unsuccessful in her, or his claim, for a family provision order, in Harkness v Harkness (No 2) [2012] NSWSC 35.

17. Accordingly, the Court:

(a)   Makes no order as to the Defendant’s costs to the intent that she will bear her own costs of the proceedings.

(b)   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.

**********

Decision last updated: 21 October 2015