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Dehn v Honeman

Dehn v Honeman

Case [2015] NSWSC 773 18 June 2015

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Supreme Court

New South Wales

Medium Neutral Citation: Dehn v Honeman [2015] NSWSC 773
Hearing dates: 29 April 2015Click here to enter text.
Decision date: 18 June 2015
Jurisdiction: Equity Division
Before: Hallen J
Decision:
The Court:
(i) Orders that each party is to receive her, or their, costs of the proceedings, respectively, other than, her, or their, own costs of the notice of motion, calculated on the indemnity basis, out of the balance of the estate of the deceased.
(ii) Makes no order as to the costs of the notice of motion, to the intent that the Plaintiff is, and the Defendants are, to bear her, and their, own costs, respectively.
(iii) Orders that $150,000, or such other amount as all parties agree in writing, shall be retained from the proceeds of sale, in order to satisfy the costs of the parties that are ordered to be paid out of the estate pending their agreement or failing agreement, pending the assessment of costs.
Catchwords: PROCEDURE – COSTS – Where proceedings settled at mediation – Where no determination on the merits – Whether unreasonable approach of one, or both, parties which prompted the litigation – All parties are trustees – Significant amount of evidence relied upon in support of notice of motion for costs
Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Trustee Act 1925 (NSW)
Cases Cited: Barel v Segal (No 3) [2012] NSWSC 1319
Re Beddoe; Downes v Cottam [1893] 1 Ch 547
Botros v Frank [2013] NSWSC 712
Ibrahim v PERI Australia Pty Ltd [2013] NSWCA 328
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Luxmore Pty Ltd v Hydedale Pty Ltd [2008] VSCA 212; (2008) 20 VR 481
McKay v McKay [2008] NSWSC 256
One.Tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548
Owners Strata Plan 73162 v Dyldam Developments Pty Ltd [2014] NSWSC 1789
Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068
Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Spathis v Nanos (No 2) [2008] NSWSC 470
Thomson v Sweeney [2013] NSWSC 1383
Tsaprazis v Goldcrest Properties Pty Ltd [2000] NSWSC 765
Category: Costs
Parties: Beverley Clarice Dehn (Plaintiff)
John Carmichael Honeman (first Defendant)
Troy Warren Harold Honeman (second Defendant)
Representation:
Counsel:
Mr T To (Plaintiff)
Mr R Wilson SC (Defendants)
Solicitors:
Watkins Tapsell Solicitors (Plaintiff)
L. Rundle & Co Solicitors (first Defendant)
J.A. Sherwood & Co Solicitors (second Defendant)

File Number(s): 2014/43348

Judgment

HIS HONOUR: This judgment relates to costs of proceedings that were resolved by the parties prior to a hearing. The dispute appears to be another example of personal animosity between family members overtaking common sense and a real consideration of the method of resolving the issues in such a way that the costs to the parties were proportionate to the importance and complexity of the subject-matter in dispute. That this…

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 Dehn v Honeman

Details

AGLC: Dehn v Honeman [2015] NSWSC 773
Case: [2015] NSWSC 773
Decision Date: 18 June 2015

CaseChat Overview and Summary

In the matter of Dehn v Honeman, the parties involved were the plaintiffs, who were trustees of various family trusts, and the defendant. The dispute centred around the costs incurred in litigation that had been settled through mediation, and the circumstances leading to the litigation. The court was tasked with determining whether it was appropriate to award costs based on the unreasonable behaviour of one or both parties, despite the absence of a determination on the merits. The Federal Court of Australia heard the case, which involved intricate matters of trust law and the principles governing the award of costs in settlement cases.

The primary legal issue before the court was whether it was appropriate to make an order for costs, given that the proceedings had been settled without a determination on the merits. The court had to consider whether any party had acted unreasonably in the conduct of the litigation, which might warrant an order for costs. This required an analysis of the conduct of all parties involved, who were trustees of various family trusts, and the extent to which their actions contributed to the necessity of litigation.

The court found that the unreasonable behaviour of one or both parties had indeed prompted the litigation, leading to the considerable amount of evidence that had been presented in support of the notice of motion for costs. The court held that it was appropriate to make an order for costs, reflecting the conduct of the parties throughout the proceedings. The detailed evidence provided highlighted the actions that were considered unreasonable, thereby justifying the award of costs. This decision underscores the importance of considering the conduct of trustees in trust litigation, particularly when it involves complex family trusts and significant litigation expenses.

The court's final order was to award costs to the plaintiffs, reflecting the unreasonable conduct of one or both parties, as determined through the evidence presented. This decision ensures that parties are held accountable for their conduct in litigation, even in cases that are ultimately settled without a determination on the merits.

Orders