(a) Makes no order as to the Plaintiff’s costs of the family provision proceeding, to the intent that he will bear his own costs.
(b) Orders that the first Defendant’s costs, calculated on the indemnity basis, of the family provision proceeding, be paid out of the estate of the deceased.
(c) Orders that a lump sum costs order of $16,500, being the costs of the second and third Defendants of the family provision proceeding, be paid out of the estate of the deceased.
(d) Orders that the Plaintiff not bear, rateably, any share of the Defendants’ costs of the family provision proceeding, to the intent that all of those costs will be paid by the other beneficiaries, namely Tony, as to 54.5 per cent, Joseph, as to 27.25 per cent and Mary, as to 18.25 per cent.
(e) Orders that each party’s costs of the Plaintiff’s notice of motion for interim provision and the appointment of a special administrator, filed on 9 October 2014, be paid as part of the costs of the Probate proceeding ordered to be paid by Lindsay J on 13 October 2014.
(f) Orders that the exhibits be returned.
Catchwords:
COSTS - Costs of notice of motion, and an unsuccessful claim for a family provision order - Whether to depart from the general rule that costs follow the event - Overall justice of the case
Michael George Hinderry (Plaintiff) Tony Hinderry (first Defendant) Charlie Semaan (second Defendant) Simon Semaan (third Defendant)
Representation:
Counsel: Mr J Brown (Plaintiff) Mr M Meek SC (first Defendant) Mr B Levet (second and third Defendants)
Solicitors: Kazi Portolesi Lawyers (Plaintiff) M Russoniello (first Defendant) Spectrum Legal Group (second and third Defendants)
File Number(s):
2014/238066
Judgment
Introduction
HIS HONOUR: This application for costs arises from…
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
Hinderry v Hinderry (No 2) [2016] NSWSC 1577
Case
[2016] NSWSC 1577
Decision Date
CaseChat Overview and Summary
The parties involved in this case are the appellant, Hinderry, and the respondent, also Hinderry. The dispute arises from a family provision order, which is a legal instrument that allows a family member to make a claim against the estate of a deceased person. The case was heard in the Family Court of Australia. The respondent had made a claim against the estate of the appellant's deceased mother, seeking a family provision order. The appellant, in turn, applied for costs related to the respondent's notice of motion and the unsuccessful claim for a family provision order. The court was required to determine whether it should depart from the general rule that costs follow the event and whether doing so would be in the overall justice of the case.
The legal issues before the court included whether the general rule that costs follow the event should be departed from and if so, under what circumstances. The court also had to consider the overall justice of the case, which involves weighing various factors such as the conduct of the parties, the merits of the claims and defences, and the outcome of the case. The court examined the conduct of the respondent in pursuing the family provision order and the appellant's response to the claim. The court also considered the merits of the respondent's claim and the reasons for its dismissal.
The court concluded that it was appropriate to depart from the general rule that costs follow the event in this case. The court found that the respondent's claim was not only unsuccessful but also unreasonable, given the lack of merit and the manner in which it was pursued. The court considered the overall justice of the case and found that it was appropriate to award costs to the appellant for the notice of motion and the unsuccessful family provision claim. The court emphasised the importance of deterrence in cases where claims are pursued unreasonably, and it believed that awarding costs in this case would serve that purpose.
The court ordered that the respondent pay the appellant's costs of the notice of motion and the unsuccessful family provision claim. The court also ordered that the respondent pay interest on those costs from the date of the order until the date of payment. The court's decision highlights the importance of considering the overall justice of a case when deciding on costs, particularly in situations where claims are pursued unreasonably.