DANIELS -v- HALL (as Administrator of the Estate of Arnold Edward Daniels) [No 2] [2014] WASC 272
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 272 | |
| Case No: | CIV:1703/2012 | ON THE PAPERS | |
| Coram: | EM HEENAN J | 29/07/14 | |
| 25 | Judgment 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. | ||
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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 |
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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.
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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