Coote v Coote (No 2)

Case [2021] NSWSC 461


Supreme Court


New South Wales

Medium Neutral Citation: Coote v Coote (No 2) [2021] NSWSC 461
Hearing dates: On the papers
Date of orders: 30 April 2021
Decision date: 30 April 2021
Jurisdiction:Equity
Before: Robb J
Decision:

(1) The Court dismisses the defendant's application to vary the costs orders made by the Court on 9 February 2021.

(2) Order the defendant to pay the plaintiff's costs of the application.

Catchwords:

COSTS — Succession — Family provision — Deceased estate — Where orders made for further family provision in favour of the plaintiff — Where the plaintiff was given a total legacy of $100,000 — Where the Court made the conventional costs order that the plaintiff’s costs be paid out of the estate on the ordinary basis and that the defendant’s costs be paid out of the estate on the indemnity basis— Where the defendant had made an offer of compromise whereby the plaintiff would have received a legacy of $101,000 — Where the defendant made an application pursuant to UCPR 42.15 that the plaintiff be ordered to pay the defendant’s costs on the indemnity basis from the date of the offer of compromise — Where the defendant had introduced issues into the litigation after the date of the offer of compromise that substantially increased the parties’ costs — Where the defendant failed in respect of the issues so introduced — Where the plaintiff at the time the offer of compromise was made could not reasonably have estimated the final amount of the costs that would be ordered to be paid out of the estate — Where the Court would have made an order for further family provision in the nature of a legacy significantly greater than $100,000 if the costs payable out of the estate on the conventional basis had not been 60% of the value of the estate— Where the application for special costs order is dismissed

Legislation Cited:

Succession Act 2006 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Chan v Chan [2016] NSWCA 222

Connor v Hatgis (No 2) [1995] NSWCA 92

Coote v Coote [2021] NSWSC 59

Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248

EDPI Pty Ltd v Rapdocs Pty Ltd [2007] NSWSC 195

Hillier v Sheather; Sheather v Hillier (1995) 36 NSWLR 414

Houatchanthara v Bednarczyk [1996] NSWCA 253

Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 339

Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721

Philpott v Pantos [2018] NSWSC 852

Sherborne Estate (No 2), Re; Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003

Sydney Attractions Group Pty Ltd v Frederick Schulman (No 3) [2013] NSWSC 1544

YWCA Australia v Chief Commissioner of State Revenue (No 2) [2021] NSWSC 102

Category:Costs
Parties: Neil William Coote (plaintiff)
Brian Thomas Coote (defendant)
Representation:

Counsel: K Morrissey (plaintiff)
C Hodgson (defendant)

Solicitors: Cicero Legal (plaintiff)
Turnbull Hill Lawyers (defendant)
File Number(s): 2019 / 171193

Judgment

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AGLC
Coote v Coote (No 2) [2021] NSWSC 461
Case
[2021] NSWSC 461
Decision Date

CaseChat Overview and Summary

The case of Coote v Coote (No 2) involved a dispute between the parties in relation to the deceased estate of an individual. The plaintiff sought further family provision, resulting in an order for a legacy of $100,000. The defendant had previously made an offer of compromise whereby the plaintiff would receive a legacy of $101,000. The defendant subsequently sought an order for the plaintiff to pay the defendant's costs on the indemnity basis from the date of the offer of compromise. This application was made pursuant to the Uniform Civil Procedure Rules, Rule 42.15.

The primary legal issue before the court was whether the defendant's application for a special costs order should be granted. The court had to consider the offer of compromise, the introduction of new issues by the defendant that increased the parties' costs, and the plaintiff's inability to estimate the final amount of costs at the time of the offer. Additionally, the court considered the potential for a significantly greater legacy if the costs had not been 60% of the estate's value.

The court dismissed the defendant's application for a special costs order. The reasoning was that the defendant's offer of compromise was not a genuine offer, as it did not account for the potential for a larger legacy and the plaintiff's inability to estimate the final costs. Furthermore, the court found that the defendant's introduction of new issues into the litigation after the date of the offer of compromise substantially increased the parties' costs. The court also noted that the plaintiff could not reasonably have estimated the final amount of the costs that would be ordered to be paid out of the estate at the time of the offer. Finally, the court considered the potential for a significantly greater legacy if the costs had not been 60% of the estate's value.

The court did not grant the defendant's application for a special costs order. Instead, the plaintiff's costs were to be paid out of the estate on the ordinary basis, and the defendant's costs were to be paid out of the estate on the indemnity basis.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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