Elix v Hill - [2023] NSWSC 1017

Supreme Court

New South Wales

Medium Neutral Citation: Elix v Hill [2023] NSWSC 1017
Hearing dates: 17 August 2023
Date of orders: 17 August 2023
Decision date: 24 August 2023
Jurisdiction: Equity - Succession & Probate List - Family Provision
Before: McGrath J
Decision:
Leave granted to the plaintiff to discontinue the proceedings. No order as to costs such that each party should bear their own costs.

Catchwords:
COSTS — where the plaintiff seeks to discontinue the proceedings — where the defendant does not consent — where the defendant seeks indemnity costs against the plaintiff on the basis that the proceedings were brought without just cause — whether the Court should grant leave for the plaintiff to discontinue the proceedings — whether the Court should depart from the ordinary position as to costs in r 42.19 of the Uniform Civil Procedure Rules 2005 (NSW) — HELD — leave to discontinue the proceedings granted — no order as to costs

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131
Furnish & Finish Pty Ltd v Hollands [2020] NSWSC 1593
Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Category: Costs
Parties: Michelle Elix (Plaintiff)
Kerrie Hill (Defendant)
Representation:
Counsel:
J Jacobs (Plaintiff)
S Brennan (Defendant)
Solicitors:
Hawkesbury Legal (Plaintiff)
Christopher M Edwards Solicitors and Accountants (Defendant)

File Number(s): 2022/00382192

JUDGMENT

In these proceedings, on 2 August 2023, the Court was informed that the plaintiff intended to discontinue the proceedings but that there was an outstanding issue as to costs. This resulted in the proceedings being listed before me on 17 August 2023 to deal with the question of costs. In advance of the hearing on 17 August 2023, the plaintiff filed the Affidavit of Michelle Gosewinckel affirmed 10 August 2023 (Gosewinckel affidavit) and provided written submissions in support of her application for leave to discontinue the proceedings on terms that the defendant pay her costs.
On 16 August 2023, the defendant filed the Affidavit of Harjot Kaur Rathore affirmed 16 August 2023 (Rathore affidavit). During the hearing on 17 August 2023, the defendant provided written submissions in which she sought an order that she be paid her costs of the proceedings on an indemnity basis.
Each of the Gosewinckel affidavit and the Rathore affidavit were read without objection at the hearing and there was no cross-examination of either deponent.
At the conclusion of the hearing on 17 August 2023, I made orders and indicated that I would reserve the delivery of my reasons for doing so.
The proceedings were commenced by Summons on 19 December 2022 in which the plaintiff sought an order that provision be made for her maintenance, education and advancement in life pursuant to s 59 of the Succession Act 2006 (NSW) in the estate of the late Rosemary…

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 Elix v Hill

Details

AGLC: Elix v Hill [2023] NSWSC 1017
Case: [2023] NSWSC 1017
Decision Date: 24 August 2023

CaseChat Overview and Summary

In the case of Elix v Hill, the plaintiff, Elix, sought to discontinue proceedings against the defendant, Hill, without the defendant's consent. The proceedings were initiated in the Supreme Court of New South Wales, and the dispute centred on the plaintiff's ability to discontinue the case and the implications of such an action on the allocation of costs. The defendant opposed the discontinuation and sought indemnity costs, arguing that the proceedings were initiated without just cause.

The court was required to decide whether it should grant leave for the plaintiff to discontinue the proceedings, particularly in light of the defendant's opposition and the request for indemnity costs. The central legal issue was whether the court should adhere to the ordinary position regarding costs as outlined in rule 42.19 of the Uniform Civil Procedure Rules 2005 (NSW), which typically dictates that the costs of the party who discontinues the proceedings are payable by that party. The court needed to assess the circumstances under which it may depart from this general rule.

The court granted leave for the plaintiff to discontinue the proceedings, acknowledging the specific circumstances of the case that warranted such a decision. In granting leave, the court recognised that the defendant had not demonstrated a significant detriment or prejudice that would warrant the imposition of indemnity costs on the plaintiff. The court concluded that the usual rule regarding costs should not be rigidly applied in this instance due to the unique factors present. Consequently, no order for costs was made against the plaintiff.

Orders