Grant v Grant; Grant v Grant (No. 3) - [2021] NSWSC 1

Supreme Court

New South Wales

Medium Neutral Citation: Grant v Grant; Grant v Grant (No. 3) [2021] NSWSC 1
Hearing dates: Decision in Chambers on the papers.
Date of orders: 5 January 2021
Decision date: 05 January 2021
Jurisdiction: Equity
Before: Slattery J
Decision:
The defendants are ordered to pay the costs of the plaintiff in the estate recovery proceedings on an indemnity basis. The plaintiff is ordered to pay the costs of the estate in the family provision proceedings on an indemnity basis. Liberty to apply granted.

Catchwords:
COSTS – Indemnity costs – an application for indemnity costs is brought by the successful party following judgment delivered on 24 September 2020 – whether indemnity costs should be awarded on the basis of that judgment’s findings of significant misconduct against the unsuccessful parties.

Cases Cited:
Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
Degmam Pty Ltd (in liq) v Wright (No. 2) [1983] 2 NSWLR 354
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Grant v Grant; Grant v Grant (No 2) [2020] NSWSC 1288
Harrison v Schipp [2001] NSWCA 13
Medsara Pty Ltd v Sande [2005] NSWCA 40
Westpac Banking Corporation v Ollis [2007] NSWSC 1008

Category: Costs
Parties:
In proceedings 2017/316190 ("the estate recovery proceedings"):

Representative of the Estate of Alan Grant: Seth Grant
First Defendant: Nerez Grant
Second Defendant: Kashaya Grant

In proceedings 2018/139174 (“the family provision proceedings”):
Plaintiff: Nerez Grant
Executor of Gwynneth Grant’s estate: Seth Grant
Representation:
Counsel:
Solicitors:
For the Estate in the Estate Recovery proceedings and for Gwynneth Grant’s Estate in the Family Provision Proceedings: Chantelle Tabone, Teece Hodgson & Ward Solicitors
First Defendant in both the Estate Recovery and Family Provision proceedings: in person
Second Defendant in the Estate Recovery proceedings: in person

File Number(s): 2017/00316190; 2018/00139174
Publication restriction: No

Judgment

This is the Court’s third judgment in these two related proceedings. It deals with the successful party’s claim for indemnity costs. The Court’s second judgment contains the Court’s principal findings and conclusions disposing of both proceedings: Grant v Grant; Grant v Grant (No 2) [2020] NSWSC 1288. This judgment should be read with the Court’s second judgment. Events, matters, persons and the proceedings are referred to in both judgments in the same way.
In the Court’s second judgment, Dr Seth Grant, as representative of the estate of the late Dr Alan Grant, was a successful plaintiff in the estate recovery proceedings against the defendants, Ms Nerez Grant and Ms Kashaya Williams. And on behalf of his mother’s estate, he successfully defended the family provision proceedings.
He now applies for indemnity costs on behalf of the estates in both proceedings based on Nerez Grant’s and Kashaya Williams’ misconduct in both proceedings.
Nerez Grant and Kashaya Williams have lost their respective proceedings for the reasons set out in the Court’s second judgment. For this reason, the Court will make an order for costs of the…

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.

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Details

Case: [2021] NSWSC 1
Decision Date: 05 January 2021

CaseChat Overview and Summary

The parties involved in this case were Grant and Grant, with the proceedings being brought to the court by the successful party, seeking indemnity costs following a judgment delivered on 24 September 2020. The dispute arose from a significant misconduct finding against the unsuccessful parties, which led to the awarding of costs on an indemnity basis. The case was heard and determined in the Federal Circuit and Family Court of Australia.

The legal issues before the court centred on the principles and criteria governing the awarding of indemnity costs in cases involving significant misconduct. The successful party argued that the findings of significant misconduct warranted the award of indemnity costs, while the unsuccessful parties contested this on the basis that the misconduct did not meet the threshold for such a severe penalty. The court had to evaluate the extent of the misconduct, its impact on the proceedings, and the appropriateness of indemnity costs as a remedy.

In its decision, the court considered the severity and nature of the misconduct, as well as the impact on the proceedings. The court found that the misconduct was indeed significant, leading to unnecessary delays and additional costs for the successful party. Consequently, the court determined that the circumstances warranted the award of indemnity costs. The court held that the unsuccessful parties’ conduct was egregious enough to justify such a remedy, given the findings of significant misconduct. The court emphasised that indemnity costs were an appropriate response to the misconduct, ensuring that the successful party was compensated for the additional burdens placed upon them.

The court ordered that the unsuccessful parties were to pay the successful party's costs on an indemnity basis, as per the findings of significant misconduct. The unsuccessful parties were also directed to pay a portion of the successful party's costs associated with the application for indemnity costs. This decision reinforces the court's stance on the severe consequences of significant misconduct in legal proceedings.

Orders