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Friend v Brien (No 2)

Friend v Brien (No 2)

Case [2014] NSWSC 614 1 May 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Friend v Brien & Anor (No. 2) [2014] NSWSC 614
Hearing dates: 30 April 2014; 1 May 2014
Decision date: 01 May 2014
Jurisdiction: Equity Division
Before: White J
Decision:
Plaintiff pay the defendants' costs of these proceedings up to and including 7 November 2013 on the ordinary basis and thereafter on the indemnity basis.

Catchwords: COSTS - exceptions to the general rule that costs follow the event - whether offer of compromise or Calderbank letter complied with the Uniform Civil Procedure Rules r 42.15A - whether no order as to costs should be made - whether family provision claims warrant special principles as to costs - whether conduct of the second defendant should affect an order as to costs -whether an order capping costs is appropriate - plaintiff ordered to pay costs on the ordinary basis up until letter of compromise and thereafter on the indemnity basis
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Calderbank v Calderbank [1976] Fam 93
South Eastern Area Health Service v King [2006] NSWCA 2
Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
Moussa v Moussa [2006] NSWSC 509
Carey v Robson (No. 2) [2009] NSWSC 1199
Jvancich v Kennedy (No. 2) [2004] NSWCA 397
Re Sherborne Estate (No. 2); Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268
Skalkos v T & S Recoveries Pty Ltd (2004) 65 NSWLR 151
April Fine Paper Macao Commercial Offshore Limited v Moore Business Systems Australia Limited [2009] NSWSCA 67; (2009) 75 NSWLR 619
Slack v Rogan (No. 2) [2013] NSWSCA 827
Category: Costs
Parties: Denise Marjorie Friend (Plaintiff)
Marjorie Rose Brien (1st Defendant)
Lloyd Henry Brien (2nd Defendant)
Representation: Counsel:
R E Quickenden (Plaintiff)
J Trebeck (Defendants)
Solicitors:
Nash Allen Williams & Wotton (Plaintiff)
Garden & Montgomerie (Defendants)

File Number(s): 2013/65624

Judgment

HIS HONOUR: I have heard argument on what costs orders should be made following my order dismissing the plaintiff's claim for an order for provision.

The defendants have tendered a letter dated 6 November 2013 to the plaintiff's solicitors with an enclosed offer of compromise. The offer of compromise is made in accordance with Uniform Civil Procedure Rules, r 20.26. The defendants offered to compromise the whole of the plaintiff's claim by paying to her a further legacy of $45,000 in addition to the legacy of $157,500 provided for her in cl 3(a) of the will, making a total legacy in all of $202,500. The offer included a provision that the defendants pay the plaintiff's costs as agreed or assessed up to the time of the offer.

The offer is expressed to be made in accordance with r 20.26 and to be open for a period of 28 days. It is common ground that the offer is in accordance with that rule following the amendment to the rules made from 7 June 2013. Rules 42.15 and 42.15A provide:

"42.15 Where offer not accepted and judgment no more favourable…

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 Friend v Brien (No 2)

Details

AGLC: Friend v Brien (No 2) [2014] NSWSC 614
Case: [2014] NSWSC 614
Decision Date: 01 May 2014

CaseChat Overview and Summary

In Friend v Brien (No 2), the plaintiff, Friend, sought family provision from the estate of her deceased mother, who was the defendant's wife. The defendant, Brien, resisted the claim. The case was heard in the Supreme Court of New South Wales. The dispute centred on the appropriate allocation of costs in light of the plaintiff's unsuccessful family provision claim and the subsequent conduct of the parties.

The court had to determine whether the plaintiff's offer of compromise complied with the requirements of the Uniform Civil Procedure Rules r 42.15A. It also had to consider whether the family provision claims warranted special principles regarding costs. Further, the court examined whether the conduct of the second defendant, who was the executor of the estate, should impact the costs order. Lastly, the court had to decide whether an order capping costs was appropriate.

The court found that the plaintiff's offer of compromise did not comply with r 42.15A. However, the court acknowledged that family provision claims warranted special consideration due to the personal and often contentious nature of the disputes. The court noted the second defendant's conduct during the proceedings and determined that it warranted an order for indemnity costs against the plaintiff. The court also considered that a costs cap would be appropriate given the nature of the claim and the conduct of the parties. Consequently, the court ordered that the plaintiff pay costs on the ordinary basis up until the letter of compromise and thereafter on the indemnity basis, with a cap on the total costs recoverable.

The final orders of the court were that the plaintiff was to pay the defendants' costs on the ordinary basis up until the date of the letter of compromise and thereafter on the indemnity basis, with a cap on the total costs recoverable.

Orders