Dion v Rieser (No 2) - [2010] NSWSC 113

CITATION: Dion v Rieser (No 2) [2010] NSWSC 113

HEARING DATE(S): In Chambers

JUDGMENT DATE :
24 February 2010

JUDGMENT OF: Bryson AJ at 1

DECISION: (1) The costs of the plaintiff of and incidental to proceedings on the statement of claim relating to the declaratory order may be paid or retained by her out of the assets of the intestate situated in New South Wales.
(2) I make no order as to the costs of the defendants with the intent that they pay their own costs.

CATCHWORDS: COSTS – Probate litigation – Issue in application for Letters of Administration – Whether plaintiff was de facto spouse of intestate – Lengthy hearing including overseas witnesses led to finding that she was [2010] NSWSC 50 – Plaintiff sought costs order against defendants (relatives of intestate), defendants sought costs out of estate – Consideration of discretionary factors including contribution of intestate's conduct to difficulties of resolving the issue – Consideration of UCPR 42.1 – Costs order departed from ordinary course in UCPR.

LEGISLATION CITED: Property (Relationships) Act 1984 s4
UCPR 42.1

CATEGORY: Consequential orders

CASES CITED: Dion v Rieser [2010] NSWSC 50

PARTIES: Margaret Anne DION (plaintiff)
Nancy Cimarron RIESER (first defendant)
Steven Robert RIESER (second defendant)
Estate of Richard Davis Rieser

FILE NUMBER(S): SC 2008/291431

COUNSEL: M B EVANS/ A KETAS (plaintiff)
A SCOTTING (defendants)

SOLICITORS: Hungerford Lehmann & Andrews (plaintiff)
Teece, Hodgson & Ward (defendants)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BRYSON AJ

WEDNESDAY, 24 FEBRUARY, 2010

2008/291431 Margaret Anne DION v Nancy Cimarron RIESER & Ors – Estate of Richard Davis RIESER

JUDGMENT

1 When I gave judgment on 12 February 2010 [2010] NSWSC 50 I reserved costs.

2 The ordinary rule is that an award of costs in favour of the successful party against the unsuccessful party follows the event. UCPR 42.1 is:

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

3 Unless there is some sufficient ground displacing the ordinary outcome, I should order that the defendants pay the plaintiff’s costs of the proceedings relating to the declaratory order. I gave the parties an opportunity to make written submissions because the facts in the present case were unusual.

4 The facts brought under attention two kinds of exceptions which sometimes arise in probate litigation; where the proceedings are attributable to the conduct of the deceased, and where the circumstances reasonably required investigation of the document put forward as a will. This case raises generally similar considerations to the second of these.

5 The plaintiff’s written submissions proceed on the basis that the plaintiff had a strong and clear case and it was not reasonable of the defendants to oppose her case. The plaintiff succeeded: I gave judgment after several…

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 Dion v Rieser (No 2)

Details

AGLC: Dion v Rieser (No 2) [2010] NSWSC 113
Case: [2010] NSWSC 113
Decision Date: 24 February 2010

CaseChat Overview and Summary

In the matter of Dion v Rieser (No 2), the plaintiff, Dion, sought a determination of whether she was the de facto spouse of the deceased, Rieser. The case was heard in the Supreme Court of New South Wales. The dispute arose in the context of an application for Letters of Administration, where Dion's relationship with Rieser was in question. This was the second iteration of the case, as the initial proceedings had concluded with an earlier decision on the matter of the plaintiff's status.

The legal issues before the court were primarily concerned with the discretionary costs order provisions under the Uniform Civil Procedure Rules 1998 (NSW). Dion argued that she was entitled to an order for costs against the defendants, who were relatives of the deceased. Conversely, the defendants sought a costs order out of the estate of the deceased. The court had to consider various discretionary factors in making its decision, including the contribution of the deceased's conduct to the difficulties encountered in resolving the issue of Dion's status, and the implications of UCPR rule 42.1.

The court found that the proceedings had been particularly arduous, involving extensive evidence and the need to call witnesses from overseas. The decision regarding Dion's status was made in the plaintiff's favour, but the extensive nature of the hearing necessitated a departure from the usual course of costs orders as outlined in the UCPR. In exercising its discretion, the court took into account the significant contributions made by the deceased's conduct to the complexity and length of the hearing. The court ultimately decided that Dion should be awarded costs against the defendants, but also noted the unique circumstances of the case that led to this departure from the ordinary course of costs orders under the UCPR.

In conclusion, the court ordered that Dion was entitled to costs against the defendants, but also acknowledged the unusual circumstances that necessitated this decision. The court's ruling recognised the extensive nature of the proceedings and the significant contribution of the deceased's conduct to the difficulties encountered in resolving the issue of Dion's status. This decision reflects the court's exercise of discretion in the context of complex probate litigation, balancing the need for fair and just outcomes with the procedural rules governing costs orders.

Orders