De Campo v Michael Colin Dawson as executor of the estate of Rosina Gisella De Campo

[2019] WASC 232

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   DE CAMPO -v- MICHAEL COLIN DAWSON as executor of the estate of ROSINA GISELLA DE CAMPO [2019] WASC 232

CORAM:   ALLANSON J

HEARD:   ON THE PAPERS

PUBLISHED           :   2 AUGUST 2019

FILE NO/S:   CIV 2497 of 2015

BETWEEN:   ROSANNA DE CAMPO

Plaintiff

AND

MICHAEL COLIN DAWSON as executor of the estate of ROSINA GISELLA DE CAMPO

First Defendant

GEROLAMO DE CAMPO

Second Defendant

Catchwords:

Costs - Where matter has not proceeded to determination on its merits

Legislation:

Family Provision Act 1972 (WA)

Result:

No order as to costs

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Fletcher Law
First Defendant	:	Fletcher Law
Second Defendant	:	Valenti Lawyers

Case(s) referred to in decision(s):

Lafferty v Waterton [2016] WASCA 183

ALLANSON J:

1. I refer to the reasons in two related actions, CIV 2139 of 2015 (the Compromise Action) and CIV 1817 of 2016 (the Ademption Action).

2. On 23 July 2015, the plaintiff commenced proceedings CIV 2139 of 2015.  The writ included a claim under the Family Provision Act 1972 (WA). The defendants objected to the procedural irregularity of including the family provision claim in the action, and a fresh action was commenced by originating summons on 18 September 2015.

3. The Family Provision Action was held in abeyance while the plaintiff pursued the Compromise Action and the Ademption Action.  On 31 July 2019, it was dismissed by consent, with costs to be determined on the papers.

4. The parties do not dispute the principles to be applied in these circumstances, where an action has not proceeded to a determination on its merits.  They were recently restated by the Court of Appeal in Lafferty v Waterton [2016] WASCA 183 [16] - [18].

5. I do not believe that the conduct of the plaintiff in commencing the Family Provision Action, as an alternative to the Compromise Action, was unreasonable. The plaintiff's conduct in agreeing to dismiss the proceedings is not a capitulation, but a recognition that the action has become unnecessary by reason of later events.

6. I would make no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CG
Associate to the Honourable Justice Allanson

2 AUGUST 2019