Farnell v Penhalluriack(No 3)
[2008] VSC 391
•2 October 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 7534 of 2004
| PATRICIA FARNELL | Plaintiff |
| v | |
| FRANCIS WILLIAM PENHALLURIACK as the executor in the estate of MALCOLM HILARY CHIPPERTON | Defendant |
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JUDGE: | BELL J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 June 2008 | |
DATE OF JUDGMENT: | 2 October 2008 | |
CASE MAY BE CITED AS: | Farnell v Penhalluriack (No 3) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 391 | |
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COSTS – plaintiff unsuccessful in application for declaration of paternity – defendant trustee sought costs on solicitor-client basis pursuant to r 63.32(2)(a) of Supreme Court Rules – plaintiff sought costs on indemnity basis in reliance on the refusal of a third party, related to the defendant, to provide DNA evidence – usual rule that costs will be awarded to the successful party on party-party basis applied.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr R Cook | Monahan + Rowell |
| For the defendant | Ms K R Rees | T J Mulvany & Co |
HIS HONOUR:
I have dismissed the plaintiff's application for a paternity declaration against the defendant trustee: Farnell v Penhalluriack (No 2) [2008] VSC 214.
The defendant seeks costs on a solicitor-client basis in reliance on r 63.32(2)(a) of the Supreme Court Rules. The plaintiff resists any order for costs being made against her and seeks an order that the defendant pay her costs on an indemnity basis.
This proceeding was brought in relation to the alleged paternity of a deceased man in respect of the plaintiff's daughter. The defendant is the trustee of the deceased's will. The plaintiff had not previously obtained a thorough judicial examination of the factual and DNA issues. She did not act unreasonably in bringing the application in the court to obtain that examination. The defendant was a proper contradictor and party, but his trustee capacity was a coincidental incident of the litigation. I do not think this is the kind of case in which r 63.32(2)(a) should be applied to bring about an order for costs against a plaintiff in favour of a trustee defendant on a solicitor-client basis.
The usual rule is that a successful party to litigation is entitled to their costs. This rule should be applied in the present case. There is no basis for doing otherwise. The plaintiff relies on the refusal of the deceased's daughter to undergo a further DNA test. This is not a basis for departing from the usual rule. The question is whether the defendant should be awarded his costs. This is not affected by the private decision of the daughter which, in the substantive judgment, I found to be reasonable in any event.
The plaintiff had some success in the proceeding as I made certain findings in her favour. However, the defendant behaved reasonably in his conduct of the defence and was entitled to contest all the factual and DNA issues in the case. This is not a case in which the court should award costs by or against a party on an issue by issue basis. That would be an artificial approach to adopt in the circumstances. The defendant was successful on the substantive issue, which involved a general consideration of all of the evidence and legal issues. Costs should follow that event.
The plaintiff will be ordered to pay the defendant’s costs, including any reserved costs, on a party-party basis.
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