(a) Order that the Defendant's costs, calculated on the indemnity basis, be paid out of the estate of the deceased. Otherwise, make no order as to costs.
Defendant seeks an order that his costs be paid by the Plaintiff - Plaintiff submits that she should have her costs out of the estate, or alternatively, there should be no order as to her costs of the proceedings - Plaintiff does not dispute that Defendant should receive his costs of the proceedings, such costs to be calculated on the indemnity basis
Janine Margaret Harkness (Plaintiff) Peter Geoffrey Harkness (as executor of the Estate of the Late Coraline June Harkness) (Defendant)
Representation:
Mr M Lawson (Plaintiff) Ms J Healey (Defendant) Campbell Paton & Taylor (Plaintiff) Rossi Simicic Lawyers (Defendant)
File Number(s):
2011/85506
Judgment
HIS HONOUR: In this matter, I delivered principal reasons for judgment on 19 December 2011, the citation of which is Harkness v Harkness [2011] NSWSC 1421. In those reasons, I determined that the Plaintiff's claim for a family provision order should be dismissed. The decision was based upon the fact that the Plaintiff did not satisfy me that she was an "eligible person" within the meaning of that term in s 57(1)(f) of the Succession Act2006. In particular, I concluded that she was not "a person with whom the deceased person was living…
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
AGLC
Harkness v Harkness (No 2) [2012] NSWSC 35
Case
[2012] NSWSC 35
Decision Date
CaseChat Overview and Summary
The case of Harkness v Harkness (No 2) involved a dispute between two parties, Harkness, regarding costs incurred during the proceedings. The plaintiff sought either that her costs be paid out of the estate or, alternatively, that there be no order as to her costs. The defendant, on the other hand, sought an order that his costs be paid by the plaintiff. The dispute came before the court, which was required to determine the appropriate allocation of costs between the parties.
The court had to decide whether the plaintiff's costs should be paid out of the estate or if there should be no order for her costs. The court also needed to determine if the defendant should be granted his costs of the proceedings, and if so, on what basis. The plaintiff did not dispute that the defendant should receive his costs but argued for them to be calculated on an indemnity basis.
The court found that the plaintiff should bear the defendant's costs of the proceedings, which were to be calculated on the indemnity basis. The court also decided that the plaintiff's costs should not be paid out of the estate, and there should be no order as to her costs. The court's reasoning was based on the principle of cost allocation in family law matters and the specific circumstances of the case. The court's decision was based on the need to balance the interests of both parties and to ensure a fair outcome in the context of the proceedings.