Elliott v Longstaff

[1999] NSWSC 331

CITATION:	Elliott v Longstaff [1999] NSWSC 331
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	4356/96
HEARING DATE(S):	13 April 1999
JUDGMENT DATE:	13 April 1999
PARTIES :	Muriel Betty Elliott (P) Clive Hendry Longstaff (D)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. J. R. Wilson. (P) Ms. J. Kveytel
SOLICITORS:	Gordon Garling Moffitt (P) Teece, Hodgson & Ward (D)
CATCHWORDS:
DECISION:

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 13 April 1999

4396/96 MURIEL BETTY ELLIOTT - TUTOR FOR STEPHANIE RAE ELLIOTT & ORS -v- CLIVE HENRY LONGSTAFF - ESTATE OF JOHN GEORGE ELLIOTT

JUDGMENT

1    MASTER: In my reserved decision published on 10 March 1999 I stated that at the conclusion of the hearing Counsel for the respective parties requested that I make no order as to costs until I had published my decision in the matter and the parties had had an opportunity of making submissions concerning costs in the light of that decision. I have today heard argument as to costs. 2    The two areas of dispute between the parties relate, firstly, to the costs in respect to the claim of the late Stephanie Rae Elliott, who was one of the plaintiffs when the proceedings were originally instituted but who died on 14 September 1998 before the matter came on for hearing; secondly, to the costs in relation to a mediation which was conducted on 7 September 1998. 3    It is submitted on behalf of the surviving plaintiff, Muriel Betty Elliott, who was successful in the substantive proceedings, that the costs relating to the claim of her daughter Stephanie Rae Elliott should also be paid out of the estate of the late John George Elliott (to whom I shall refer as “the deceased”), and, further, that the costs which will be awarded to at least the plaintiff Muriel Betty Elliott and to the defendant Clive Henry Longstaff should include the costs of the mediation. 4    There was no dispute between the parties that Muriel Betty Elliott should receive out of the estate of the deceased her costs on the party and party basis and that the defendant should receive out of the estate his costs on the indemnity basis. 5    The fact that one of the plaintiffs died before the matter came on for hearing and that the cause of action died with that plaintiff does not, of itself, preclude the estate of that deceased plaintiff from obtaining a costs order in its favour. 6    There has been placed before me in the present application evidence concerning the mediation, and over the objection made on behalf of the defendant, I have admitted evidence of the result of that mediation. 7    The deceased plaintiff was successful in the mediation and the parties agreed that an order in her favour should be made by the Court. The matter was listed for the making of such an order on 17 September 1998. However, three days earlier, on 14 September 1998, Stephanie Rae Elliott died. In those circumstances it seems to me that the estate of that deceased plaintiff is entitled to have a costs order made in its favour. 8    The other area of dispute related to the costs of the mediation. I have already referred to the fact that in the mediation the deceased plaintiff was successful. Her mother, Muriel Betty Elliott, as a result of the mediation would not have received any benefit greater than that given to her under the will of the deceased. However, in the substantive proceedings, which were heard by me on 23 November 1998, Mrs Muriel Elliott was substantially successful. 9    There is no doubt that the defendant executor is entitled to receive out of the estate his costs of the mediation. It seems to me that the plaintiffs also should appropriately receive out of the estate their costs of the mediation. 10    One further matter should be adverted to. There appears to have been some confusion between the parties (a confusion which may have, at least, partly had its origin in the records of the Court) concerning the date which was originally fixed for the hearing of this matter. When, on 30 October 1998, I vacated that day's hearing date by consent of the parties, I also by their consent reserved the costs of that day and any costs thrown away by reason of the vacating of that day's hearing date. 11    The costs order which I propose to make in favour of the deceased plaintiff, the surviving plaintiff and the defendant will also include the costs reserved on 30 October 1998. 12    I make the following orders:-

(1) I order that the costs of the plaintiff Stephanie Rae Elliott, now deceased, up to and including 14 September 1998 and the costs of the plaintiff Muriel Betty Elliott, the costs of each such plaintiff to be on the party and party basis, and the costs of the defendant on the indemnity basis - be paid out of the estate of the late John George Elliott (“the deceased”).
(2) I order that the foregoing costs of each plaintiff and of the defendant respectively include -
(a) the costs of the mediation conducted in September 1998;
(b) the costs reserved on 30 October 1998, and
(c) the costs of today's application.

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