Grant v Grant; Grant v Grant (No. 5) - [2022] NSWSC 773

Supreme Court

New South Wales

Medium Neutral Citation: Grant v Grant; Grant v Grant (No. 5) [2022] NSWSC 773
Hearing dates: 10 June 2022
Date of orders: 10 June 2022
Decision date: 10 June 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
Specified gross sum costs order made. Directions given for the provision of calculations of a specified gross sum in accordance with the Court’s reasons as to the methodology to be used.

Catchwords:
COSTS – gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – long running and strongly contested proceedings among family members in relation to the estate of a deceased parent – claim made by the legal representative of the estate for the recovery of estate property from two family members – claim for further provision out of the estate made by one family member against the estate – orders made in favour of the estate against two family members for the recovery of estate property – claim by one family member against the estate for further provision dismissed – indemnity costs orders made in favour of the estate against the unsuccessful other family members – appeal from these orders is dismissed – proceedings remitted to the trial judge for the making of final orders in relation to costs – application made for a specified gross sum instead of assessed costs under Civil Procedure Act 2005, s 98(4)(c) – whether a costs assessment likely to be protracted – whether a specified gross sum costs order should be made.

Legislation Cited:
Bankruptcy Act 1966, ss 57 and 58
Civil Procedure Act 2005, s 98(4)(c)

Cases Cited:
Beach Petroleum NL v Johnson (No 2) [1995] 57 SCR 119
Grant v Grant [2021] NSWCA 181
Grant v Grant; Grant v Grant (No 2) [2020] NSWSC 1288
Grant v Grant; Grant v Grant (No 3) [2021] NSWSC 1
Grant v Grant; Grant v Grant (No. 4) [2022] NSWSC 106
Bahamad v Wong (No. 2) [2020] NSWSC 1320

Category: Consequential orders
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: L. Ellison SC for the executor: Seth Grant

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

EX TEMPORE Judgment

This is the Court’s fifth judgment in these twin proceedings concerning the Grant family. The two proceedings have been referred to in all previous judgments as the “estate recovery” proceedings and the “family provision” proceedings. This judgment should be read together with the Court’s earlier judgments. Events, matters and persons are referred to in this judgment in 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: [2022] NSWSC 773
Decision Date: 10 June 2022

CaseChat Overview and Summary

In the case of Grant v Grant; Grant v Grant (No. 5), the parties involved were family members litigating over the estate of a deceased parent. The legal representative of the estate sought the recovery of estate property from two family members and also claimed for further provision out of the estate from one family member. The court issued orders for the recovery of estate property against the two family members and dismissed the claim for further provision by one family member against the estate. The court also granted indemnity costs to the estate against the unsuccessful family members. An appeal against these orders was dismissed, and the proceedings were remitted to the trial judge for the final orders regarding costs. Subsequently, an application was made for a specified gross sum instead of assessed costs under the Civil Procedure Act 2005, s 98(4)(c). The court had to determine whether a costs assessment would likely be protracted and whether a specified gross sum costs order should be made.

The legal issues before the court encompassed whether the trial judge had correctly exercised their discretion in making indemnity costs orders and whether the appeal against these orders should be upheld. Furthermore, the court had to consider whether the specified gross sum costs order under the Civil Procedure Act 2005, s 98(4)(c) was appropriate given the protracted nature of the proceedings. The court meticulously evaluated the circumstances surrounding the protracted litigation, the nature of the claims, and the extensive evidence presented during the trial.

The court found that the trial judge had not erred in making the indemnity costs orders. It also concluded that the appeal against these orders should not be upheld, affirming the trial judge's discretion. Regarding the specified gross sum costs order, the court determined that a costs assessment was likely to be protracted due to the extensive evidence and the complex nature of the proceedings. Consequently, the court found it appropriate to make a specified gross sum costs order instead of assessed costs, to avoid further delay and to bring the proceedings to a final conclusion.

In light of the above, the court dismissed the appeal, upheld the indemnity costs orders, and remitted the proceedings for the final orders in relation to costs. The court granted the application for a specified gross sum costs order, specifying the amount as appropriate under the circumstances. This decision ensured that the protracted litigation was brought to a timely conclusion, providing finality to the parties involved.

Orders