Hillman v Box (No 5)

Case [2014] ACTSC 150


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

Halsburys Laws of England (4th ed, v 32
AGC (Advances) Ltd v West (1984) 5 NSWLR 301
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2006] NSWSC 583
Becker v Queensland Investment Corporation (No 2) [2009] ACTSC 147
Brymount Pty Ltd t/a Watson Toyota v Cummins (No 2) [2005] NSWCA 69
De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207
Dobb v Hacket [1993] 10 WAR 532
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd [2000] FCA 602
Dzundza v Nielsen [2013] ACTSC 220
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59
Financial Integrity Group Pty Ltd v Farmer (No 4) [2014] ACTSC 145
Ford Motor Company of Australia Ltd v Lo Presti (2009) 41 WAR 1
Frankenburg v Famous Lasky Film Service Ltd [19431] 1 Ch 428
Giles v Randall [1915] 1 KB 290
Goodwin v Storrar [1947] KB 457
Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435
Hillman v Box (No 4) [2014] ACTSC 107
J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23
Jones v Trad (No 3) [2013] NSWCA 463
Latoudis v Casey (1990) 170 CLR 534
Lyon v Lyon [1953] P 1
Mainteck Services Pty Ltd v Stein Heurtey SA [2013] NSWSC 1165
Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434
Ng v Chong [2005] NSWSC 385
Quirk v Bawden (1992) 112 ACTR 1
Re Adamow (deceased) (1989) 97 FLR 410
Re Marsland & Marsland [1902] St R Qd 219
Savvaki v Papagyriou [2008] NSWSC 922
Sherborne Estate (No 2);  Vanvalen v Neaves (2005) 65 NSWLR 268
Singer v Berghouse (1993) 114 ALR 521
Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97
Smith v NSW Bar Association (1992) 176 CLR 256
The National Safety Council (in liquidation) (No 2) [1992] 1 VR 485
Underwood v Underwood [2009] QSC 107
Walsh v Walsh (No 2) [2013] NSWSC 1281
Woolnough v Public Trustee (No 2) [2005] TASSC 102

No. SC 564 of 2010

Judge:              Refshauge J

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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