NOELLE ELIZABETH HILLMAN v LYNDA BOX, DEBRAH BOX AND SKYE BOX AS EXECUTORS OF THE ESTATE OF GRAEME WILLIAM BOX (NO 5) [2014] ACTSC 150 (26 June 2014)
PROCEDURE – Costs – Whether order can be amended after being made – Order not perfected – Application to re-open costs – Costs do not necessarily follow event in family provision cases – “Calderbank letter” – Plaintiff not given reasonable time to consider offer – “Calderbank letter” not to be considered in assessing costs due to lack of unreasonableness in rejecting offer
Family Provisions Act 969 (ACT) Supreme Court Act 1933 (ACT), s 37E(4)
Court Procedures Rules 2006 (ACT), r 1721 Supreme Court Rules 1970 (NSW), Pt 52, r 30 Rules of the Supreme Court 1965 (UK), O 62 r 28
[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
Hillman v Box (No 5) [2014] ACTSC 150
Case
[2014] ACTSC 150
Decision Date
CaseChat Overview and Summary
The case of Hillman v Box (No 5) involved a dispute over costs in a family provision matter. The plaintiff, Hillman, sought to amend an earlier costs order, arguing that the original order was not perfected and that a "Calderbank letter" should have been considered in the assessment of costs. The defendant, Box, opposed the application to re-open costs, arguing that the plaintiff was not given reasonable time to consider the offer and that the "Calderbank letter" should not be considered in assessing costs due to the lack of unreasonableness in rejecting the offer.
The court was required to decide whether the order could be amended after being made and whether the "Calderbank letter" should be considered in assessing costs. The court considered the principles of costs in family provision cases and the effect of a "Calderbank letter" on the assessment of costs. The court held that costs do not necessarily follow the event in family provision cases and that the "Calderbank letter" was not to be considered in assessing costs due to the lack of unreasonableness in rejecting the offer.
The court found that the plaintiff was not given reasonable time to consider the offer and that the order was not perfected. However, the court held that the application to re-open costs was not justified. The court ordered that one fifth of the plaintiff’s costs, including the costs of the submissions as to costs, be paid on a common fund basis out of the assets of the Estate of the late Graeme William Box.
The court's decision highlights the importance of giving parties reasonable time to consider offers and the limited effect of a "Calderbank letter" in assessing costs. The court's decision also emphasises the discretionary nature of costs orders in family provision cases.
Orders
Orders of the court
1. That one fifth of the plaintiff’s costs including the costs of the submissions as to costs be paid on a common fund basis out of the assets of the Estate of the late Graeme William Box.