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Coss v Norman (No 2)

Coss v Norman (No 2)

Case [2021] NSWSC 1490 19 November 2021

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Supreme Court

New South Wales

Medium Neutral Citation: Coss v Norman (No 2) [2021] NSWSC 1490
Hearing dates: On the papers; written submissions ending 10 November 2021
Date of orders: 19 November 2021
Decision date: 19 November 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [40]

Catchwords:
COSTS – succession – family provision – application for further provision refused – incidence of costs – adverse effect on plaintiff’s financial position if costs order made against him – plaintiff’s application was for provision in the nature of advancement not maintenance – no sufficient reason to depart from the usual order as to costs – solicitor-client costs out of the estate – form of order

Legislation Cited:
Succession Act 2006 (NSW), s 59
Uniform Civil Procedure Rules 2005 (NSW), r 42.20

Cases Cited:
Calderbank v Calderbank [1975] 3 WLR 586
Chapple v Wilcox (2014) 87 NSWLR 646
Daniels v Hall (No 2) [2014] WASC 272
Harkness v Harkness (No 2) [2012] NSWSC 35
Lewis v Lewis (No 2) [2020] NSWSC 1519
McCusker v Rutter [2010] NSWCA 318
Megerditchian v Khatchadourian (No 2) [2020] NSWSC 112
North v Daniel [2021] NSWSC 828
Singer v Berghouse (1993) 67 ALJR 708

Category: Costs
Parties: Rodney James Coss (Plaintiff)
Fiona Norman (Defendant)
Representation:
Counsel:
TJ Morahan (Plaintiff)
S Chapple (Defendant)
Solicitors:
Lang Noonan Legal (Plaintiff)
Somerville Legal (Defendant)

File Number(s): 2020/230538
Publication restriction: Nil

Judgment

This judgment deals with the costs of an application for family provision under s 59 of the Succession Act 2006 (NSW). I delivered my principal judgment on 5 November 2021: Coss v Norman [2021] NSWSC 1464. This judgment assumes familiarity with, and uses the abbreviations in, my principal judgment. Paragraph references to my principal judgment are denoted “J1”.
I set out the background and facts of the proceedings at J1 [2]-[16], which I will not repeat here. The following is provided by way of summary.
The proceedings concern the estate of the late David Henry Norman, who died in September 2019 at the age of 55. He and the plaintiff, James, lived together in a domestic relationship from 2012 onwards. This continued until May 2019, when James moved out.
The deceased died tragically by suicide. He never married and had no children. He was survived by his three siblings: Fiona (who is the defendant in these proceedings), Steven and Joanne. In the four months before his death, he made no less than four wills. By the last will, made nine days before his death, he appointed Fiona as his executor. Under the will, he left an investment property in Rosebery to James. He left the rest of his estate (excluding chattels belonging to James) to his siblings, with 70% going to Fiona.
As I noted at J1 [20]-[23], the value of the Rosebery property was $520,000. There was a mortgage debt of $320,000. The net value of the gift to James in the will was $200,000 (representing the equity in the property). By the time of the hearing, about $30,000…

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 Coss v Norman (No 2)

Details

AGLC: Coss v Norman (No 2) [2021] NSWSC 1490
Case: [2021] NSWSC 1490
Decision Date: 19 November 2021

CaseChat Overview and Summary

Coss v Norman (No 2) involved the plaintiff, Coss, seeking additional family provision from the estate of his deceased father, Norman. The case was heard in the Supreme Court of New South Wales. Coss's initial application for further family provision was denied, and the court was required to determine the incidence of costs between the parties. The central legal issue was whether the court should order Coss to bear his own costs and, if so, whether these costs should be paid out of the estate or personally by Coss. The court also had to consider whether Coss's application was for provision in the nature of advancement or maintenance, which would affect the outcome.

The court found that Coss's application was for provision in the nature of advancement rather than maintenance, a distinction that is significant under the relevant statute. This distinction influenced the court's decision regarding costs. The court emphasised that there was no sufficient reason to depart from the usual order that the defendant bears the costs of the proceeding, which in this case was Coss. However, the court recognised that ordering Coss to pay his own costs could have an adverse effect on his financial position. Consequently, the court determined that the costs should be paid out of the estate rather than imposing a personal financial burden on Coss. The form of the order was carefully crafted to reflect this decision.

The court's reasoning led to the conclusion that the usual order for costs should apply, with the costs being borne by the estate. This decision balanced the statutory provisions regarding family provision with the need to protect Coss's financial interests. The court ordered that Coss's costs of the application be paid by the estate, ensuring that the financial impact on Coss was minimised. This order reflects the court's careful consideration of both legal principles and the practical implications for the parties involved.

Orders