Daniels v Hall (No 2)

Case [2014] WASC 272


DANIELS -v- HALL (as Administrator of the Estate of Arnold Edward Daniels) [No 2] [2014] WASC 272



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2014] WASC 272
Case No:CIV:1703/2012ON THE PAPERS
Coram:EM HEENAN J29/07/14
25Judgment Part:1 of 1
Result: Plaintiff to pay the taxed costs of each of defendants on a party and party basis until his rejection of Calderbank offer and thereafter on an indemnity basis.
First defendant, executrix, to have all her costs taxed on an indemnity basis from the estate but to be satisfied in part by such of her taxed costs as are paid by plaintiff, or if her costs are first paid by the estate then her costs as payable by the plaintiff shall be paid to the estate in partial indemnity of her costs recovered from the estate.
A
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Parties:ROBERT GRAEME DANIELS
MARILYN DENISE HALL (as Administrator of the Estate of Arnold Edward Daniels)
MARILYN DENISE HALL
JANICE PHYLLIS McMILLAN
DEBRA ANNE DANIELS
HELEN JAN DANIELS
KAYE PATRICIA BROUWER

Catchwords:

Family provision
Family Provision Act 1972
Unsuccessful application by adult son
Costs of parties
Application by unsuccessful plaintiff for his costs to be paid out of the estate
Application by executrix for her costs to be paid on an indemnity basis by the plaintiff or alternatively by the estate
Application by other defendants (residuary beneficiaries) for their costs to be paid by the plaintiff or from the estate
Calderbank offers rejected by plaintiff
Application by residuary beneficiaries for their costs to be paid by the plaintiff on an indemnity basis following the rejected Calderbank offers
Costs in Family Provision Act applications generally
Significance of practice direction 9.2.2(5)
Discretionary considerations

Legislation:

Family Provision Act 1972 (WA)

Case References:

Bentley v Brennan (No 2) [2006] VSC 226
Bevilacqua v Robinson (No 2) [2008] NSWSC 520
Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190
Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586
Carey v Robson (No 2) [2009] NSWSC 1199
Cumming v Sands [2001] NSWSC 507
Daniels v Hall (as Administrator of the Estate of Arnold Edward Daniels) [2014] WASC 152
Dawson v Joyner (No 2) [2012] QSC 24
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Gapes v Haeberie [2003] VSC 461
Krause v Sinclair [1983] 1 VR 73
Milillo v Konnecke [2009] NSWCA 109; (2009) 2 ASTLR 235
Nicholls v Hall [2007] NSWCA 356
Re Nielsen [1968] Qd R 221
Re Sherborne Estate (No 2) [2005] NSWSC 1003; (2005) 65 NSWLR 268
Sergi v Sergi [2012] WASC 18
Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
Underwood v Underwood [2009] QSC 107; (2009) 4 ASTLR 150
Wang v D'Ambrosio [1999] NSWSC 227
Wentworth v Wentworth (1995) 37 NSWLR 703


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CHAMBERS
CITATION : DANIELS -v- HALL (as Administrator of the Estate of Arnold Edward…

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AGLC
Daniels v Hall (No 2) [2014] WASC 272
Case
[2014] WASC 272
Decision Date

CaseChat Overview and Summary

The case of Daniels v Hall (No 2) involved an application under the Family Provision Act 1972 by an adult son, the plaintiff, seeking a portion of his parents' estate. The deceased's estate was administered by an executrix, the first defendant, with other beneficiaries, the second and third defendants, contesting the plaintiff's application. The court had to address the issue of costs incurred by the parties, focusing on who should bear these costs under the Family Provision Act and the implications of rejected Calderbank offers.

The primary legal issue before the court was the allocation of costs among the parties. This involved interpreting the relevant provisions of the Family Provision Act and understanding the effect of rejected Calderbank offers, which are settlement offers made under r 42.14 of the Federal Circuit and Family Court of Australia Rules 2021. The court had to consider the general principles governing costs in Family Provision Act applications and the specific guidance provided by the Supreme Court's practice direction 9.2.2(5).

In delivering the judgment, the court noted that the plaintiff had rejected Calderbank offers made by the defendants. The court emphasised that such rejections could have significant implications for the allocation of costs. The court held that the plaintiff should pay the costs of each defendant on a party and party basis up to the point of the rejected Calderbank offer and on an indemnity basis thereafter. The executrix was entitled to have all her costs taxed on an indemnity basis from the estate, but she could be partially satisfied by the costs paid by the plaintiff. If the estate initially paid the executrix's costs, the plaintiff would then pay the executrix's costs to the estate in partial indemnity.

The court made several orders to reflect its decision on costs. The plaintiff was ordered to pay the taxed costs of each defendant on a party and party basis until his rejection of the Calderbank offer, and thereafter on an indemnity basis. The executrix was to have all her costs taxed on an indemnity basis from the estate, with partial satisfaction by the plaintiff's contribution to those costs. If the estate initially paid the executrix's costs, the plaintiff would reimburse the estate for those costs in partial indemnity.

Orders

Orders of the court

Plaintiff to pay the taxed costs of each of defendants on a party and party basis until his rejection of Calderbank offer and thereafter on an indemnity basis.

First defendant, executrix, to have all her costs taxed on an indemnity basis from the estate but to be satisfied in part by such of her taxed costs as are paid by plaintiff, or if her costs are first paid by the estate then her costs as payable by the plaintiff shall be paid to the estate in partial indemnity of her costs recovered from the estate.

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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