Harkness v Harkness (No 2)

Case [2012] NSWSC 35


Supreme Court


New South Wales

Medium Neutral Citation: Harkness v Harkness (No 2) [2012] NSWSC 35
Hearing dates:2 February 2012
Decision date: 02 February 2012
Jurisdiction:Equity Division
Before: Hallen AsJ
Decision:

(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.

(b) Order that the exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

Catchwords: 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
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Australiawide Airlines Limited t/as Regional Express v Aspirion Pty Limited [2006] NSWCA 365
Bartkus v Bartkus [2010] NSWSC 889
Bodman, Re [1972] Qd R 281
Carey v Robson [2010] NSWCA 212
Dobb v Hacket (1993) 10 WAR 532
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52
Forsyth v Sinclair (No 2) [2010] VSCA 195
Harkness v Harkness [2011] NSWSC 1421
Jvancich v Kennedy (No 2) [2004] NSWCA 397
Lillis v Lillis [2010] NSWSC 359
McCusker v Rutter [2010] NSWCA 318
McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484
Mikan v Velcic (No 2) [2011] NSWSC 505
Morse v Morse (No 2) [2003] TASSC 145
Moussa v Moussa [2006] NSWSC 509
Nicholls v Hall [2007] NSWCA 356
Ohn v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council (1998) 193 CLR 72
Shearer v The Public Trustee (NSWSC, Young J, 21 April 1998, unreported)
Sherborne Estate (No 2), Re; Vanvalen v Neaves [2005] NSWSC 1003
Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
Sitch (No 2), Re [2005] VSC 383
Smith v Smith (No 2) [2011] NSWSC 1105
Texts Cited: Practice Note SC Eq 7 - Family Provision
Category:Costs
Parties: 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

  1. 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 Act 2006. In particular, I concluded that she was not "a person with whom the deceased person was living…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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