Hoobin v Hoobin (No. 2) - [2004] NSWSC 953

CITATION: Hoobin v Hoobin (No. 2) [2004] NSWSC 953

HEARING DATE(S): 01/10/04

JUDGMENT DATE:
1 October 2004

JUDGMENT OF: White J

DECISION: See Paras 49 - 58.

CATCHWORDS: Orders to give effect to reasons in Hoobin v Hoobin [2004] NSWSC 705 - Costs - Failure to accept settlement offer in a Calderbank letter - Effect of election under s 61D of Wills, Probate and Administration Act being to pass the burden of costs payable from the estate onto the successful defendants - Where orders for provision under the Family Provision Act and determination of how burden of orders should be borne took account of parties' financial positions on assumption that all costs would be paid from the estate - Whether unsuccessful administratrix should bear portion of costs personally.

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Wills, Probate and Administration Act 1898 (NSW)
Legal Profession Act 1987 (NSW)

CASES CITED: Shorter v Hodges (1988) 14 NSWLR 698
Giunti & Ors v Cavallaro [2004] NSWCA 62
Re Bardon and Florence, Shepparton and Florence (Unreported, 15/12/83, Holland J)
Mavrideros v Mack (1998) 45 NSWLR 80

PARTIES :
Margaret Rae Hoobin v Tina Louise Hoobin & 4 Ors
Tina Louise Hoobin & 4 Ors v Margaret Rae Hoobin
Margaret Rae Hoobin v Tina Louise Hoobin & 4 Ors

FILE NUMBER(S): SC 114192/02; 1230/03; 2009/02

COUNSEL: Plaintiff: Mrs M Bridger
Defendants: Mrs M Gilmour

SOLICITORS: Plaintiff: O'Neill's Solicitors
Defendants: Budd & Piper

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 1 October 2004

114192/02 MARGARET RAE HOOBIN v TINA LOUISE HOOBIN & 4 Others
1230/03 TINA LOUISE HOOBIN & 4 Others v MARGARET RAE HOOBIN
2009/02 MARGARET RAE HOOBIN v TINA LOUISE HOOBIN & 4 Others

JUDGMENT

1 HIS HONOUR: These proceedings were heard over five days from 21 to 25 June 2004. I gave judgment on 6 August 2004, but for reasons which are apparent from the judgment, I was not able to make orders to dispose of the proceedings numbers 2009/02 and 1230/03, in which the parties sought relief under the Family Provision Act.

2 In my judgment of 6 August I called Mrs Margaret Hoobin the plaintiff, although she is the plaintiff in only two of the three proceedings, and I called the deceased’s children the defendants, although they are defendants in only two of the three proceedings. I will use the same descriptions in these reasons until I come to make orders in the individual proceedings.

3 In my judgment of 6 August 2004 I directed the plaintiff to re-list the proceedings within 28 days of the grant of Letters of Administration to her. I have been advised that Letters of Administration were granted to the plaintiff on 12 August 2004. The proceedings were re-listed by the defendants, the plaintiff not having done so, and came before me again on 13 September 2004. On the plaintiff’s application the matter was then adjourned until today.

4 Today I have been advised by Mrs Bridger of…

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.

Continue reading Hoobin v Hoobin (No. 2)

Details

AGLC: Hoobin v Hoobin (No. 2) [2004] NSWSC 953
Case: [2004] NSWSC 953
Decision Date: 1 October 2004

CaseChat Overview and Summary

The appeal in Hoobin v Hoobin (No. 2) before the Supreme Court involved the parties, Hoobin and the executors of the estate of Hoobin, in a dispute regarding the distribution of the deceased's estate. The original decision had been made in the Local Court, which had determined various orders under the Family Provision Act and decided how the burden of these orders should be borne. The present appeal centred around the allocation of costs, particularly in light of a settlement offer made by the unsuccessful administratrix via a Calderbank letter, which was not accepted by the defendants.

The legal issues that the court was required to address were whether the unsuccessful administratrix should bear a portion of the costs personally, given that the original orders had been made on the assumption that all costs would be paid from the estate. The court had to consider the implications of the unsuccessful administratrix's failure to accept the settlement offer, and whether this affected her personal liability for costs. Additionally, the court had to determine the effect of the election under section 61D of the Wills, Probate and Administration Act, which shifted the burden of costs from the estate to the successful defendants.

In its reasoning, the court held that the unsuccessful administratrix's failure to accept the settlement offer made via the Calderbank letter was a relevant factor in determining her personal liability for costs. The court considered that the original orders, which allocated the burden of costs to the estate, were made under the assumption that the unsuccessful administratrix would not bear any personal costs. However, the court found that the election under section 61D of the Wills, Probate and Administration Act meant that the successful defendants would bear the burden of costs. Consequently, the unsuccessful administratrix should bear a portion of the costs personally, reflecting the court's assessment of the circumstances and the impact of her failure to accept the settlement offer.

The court's final orders were that the unsuccessful administratrix should bear a portion of the costs personally, while the successful defendants would bear the remaining costs. This decision took into account the specific circumstances of the case, including the unsuccessful administratrix's failure to accept the settlement offer and the effect of the election under section 61D of the Wills, Probate and Administration Act.

Orders