(1) First respondent pay the appellant’s costs of the appeal and cross appeal, assessed on the ordinary basis.
(2) First respondent (as plaintiff) pay 25% of the first and second defendants’ costs of the proceedings below, assessed on the ordinary basis, with the intention that the parties otherwise bear their own costs.
(3) The difference between the amount recovered from the first respondent under Orders 1 and 2 and the total of the appellant’s costs of the appeal, assessed on the indemnity basis, and the costs at first instance, assessed on the indemnity basis, be paid out of the estate of Stephne Whiteway.
(4) Note that no orders are made as to the costs of the second respondent, Jane French, to the intent that she bears her own costs of the proceedings below, and of the appeal and cross appeal.
Catchwords:
COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion – Family provision proceedings – Where plaintiff successful at first instance but lost on appeal – Whether to make no order as to costs of first instance and appeal proceedings
Adrian Haertsch (as executor of the estate of Stephne Whiteway) (first appellant) Adrian Haertsch (as executor of the estate of Donald Whiteway) (second appellant) Elizabeth Whiteway (first respondent) Jane French (second respondent)
Representation:
Counsel: J Brown (appellants) First respondent self-represented
Solicitors: Elyse White, Solicitor (appellants) First respondent self-represented
[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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AGLC
Haertsch v Whiteway (No 2) [2020] NSWCA 287
Case
[2020] NSWCA 287
Decision Date
CaseChat Overview and Summary
In *Haertsch v Whiteway (No 2)*, the New South Wales Court of Appeal considered an application for costs following a family provision proceeding. The plaintiff, Ms. Whiteway, had been successful at first instance but subsequently lost on appeal. The appeal and cross-appeal involved the plaintiff, the first respondent, and the appellant, who was the first defendant. The second respondent, Jane French, was the second defendant.
The central legal issues before the Court of Appeal were whether to depart from the general rule that costs follow the event, and how to exercise the court's discretion regarding the costs of both the first instance proceedings and the appeal. Specifically, the court had to determine the appropriate cost orders in circumstances where the plaintiff, initially successful, ultimately failed to uphold the primary judge's decision on appeal.
The Court of Appeal reasoned that while the general rule is that costs follow the event, this rule is not absolute, particularly in family provision proceedings where there is a discretion to depart from it. The court noted that the plaintiff had been successful at first instance, which justified an award of costs in her favour at that stage. However, given her subsequent failure on appeal, the court considered it appropriate to make a partial order for the plaintiff to pay a proportion of the defendants' costs of the proceedings below. The court also ordered the first respondent to pay the appellant's costs of the appeal and cross-appeal. Crucially, the court directed that any shortfall in the appellant's costs, assessed on an indemnity basis, and the costs at first instance, also assessed on an indemnity basis, should be paid out of the estate of Stephne Whiteway. No orders were made as to the costs of the second respondent, Jane French, meaning she was to bear her own costs throughout.
Orders
Orders of the court
(1) First respondent pay the appellant’s costs of the appeal and cross appeal, assessed on the ordinary basis.
(2) First respondent (as plaintiff) pay 25% of the first and second defendants’ costs of the proceedings below, assessed on the ordinary basis, with the intention that the parties otherwise bear their own costs.
(3) The difference between the amount recovered from the first respondent under Orders 1 and 2 and the total of the appellant’s costs of the appeal, assessed on the indemnity basis, and the costs at first instance, assessed on the indemnity basis, be paid out of the estate of Stephne Whiteway.
(4) Note that no orders are made as to the costs of the second respondent, Jane French, to the intent that she bears her own costs of the proceedings below, and of the appeal and cross appeal.