(2) Orders the Plaintiff to pay the Defendants’ costs up to 20 June 2019 calculated on the ordinary basis, and from 21 June 2019, to pay the Defendants’ costs calculated on the indemnity basis.
Catchwords:
SUCCESSION – Family provision – Claim by minor child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – The Defendants are the parents of the deceased and the executors to whom Probate was granted – Obligation or responsibility of a parent to a child – Relevance of "bare paternity" – Maintenance provision made in the deceased’s Will for the Plaintiff – Other significant provision received by the Plaintiff as a result of deceased’s membership of a superannuation fund and as a member of the Australian Defence Force – Whether provision made in the Will of the deceased is adequate and proper
COSTS – Indemnity costs – Offer of compromise –Where defendant obtains an order or judgment on the claim no less favourable than the terms of the offer – Where offer of compromise complies with UCPR – Whether Court should otherwise order – Whether Plaintiff’s tutor should be held personally liable to pay costs
[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
Harris v Carter [2020] NSWSC 196
Case
[2020] NSWSC 196
Decision Date
CaseChat Overview and Summary
In the case of Harris v Carter, the minor plaintiff, Harris, sought provision from the estate of her deceased father under the Succession Act 2006 (NSW). The defendants, Carter and Carter, are the deceased's parents and the executors of his estate. The deceased had made a maintenance provision for the plaintiff in his will, but Harris argued that this was insufficient. Additionally, Harris received significant provisions from the deceased's superannuation fund and Australian Defence Force membership. The central dispute was whether the provisions made in the deceased's will were adequate and proper, given the other financial benefits Harris received.
The court was required to determine whether the provisions made in the deceased's will were adequate and proper, considering the other financial benefits Harris received. The court also had to consider whether the defendants were liable for indemnity costs and whether the plaintiff's tutor should be held personally liable to pay costs. The court's reasoning involved assessing the deceased's will against the other benefits Harris received, and examining the defendants' offer of compromise to determine if it complied with the Uniform Civil Procedure Rules.
The court found that the provisions made in the deceased's will were adequate and proper, taking into account the other financial benefits Harris received. The court held that the defendants were not liable for indemnity costs as they obtained an order or judgment on the claim no less favourable than the terms of the offer. However, the court ordered that the plaintiff's tutor be held personally liable to pay costs, as the offer of compromise did not comply with the Uniform Civil Procedure Rules.
The court's final orders were that the defendants were not liable for indemnity costs, and the plaintiff's tutor was held personally liable to pay costs. The court found that the provisions made in the deceased's will were adequate and proper, considering the other financial benefits Harris received.