Irwin v Pamplin (No 2) - [2021] NSWSC 871

Supreme Court

New South Wales

Medium Neutral Citation: Estate Pamplin; Irwin v Pamplin (No 2) [2021] NSWSC 871
Hearing dates: On the papers; final submission 31 May 2021
Date of orders: 20 July 2021
Decision date: 20 July 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [55]-[56]

Catchwords:
COSTS – party/party – plaintiff issued notice to produce and subpoenas to defendant and entities associated with defendant – plaintiff challenged sufficiency of compliance with notice and subpoenas – plaintiff successfully brought a motion for the recipients’ examination under Civil Procedure Act 2005 (NSW), s 68 – defendant now seeks her costs of the motion – whether there is reason to depart from the usual rule that costs follow the event

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 61, 68, 98
Succession Act 2006 (NSW), s 102
Uniform Civil Procedure Rules 2005 (NSW), rr 21.2, 42.1

Cases Cited:
Dimos v Willetts (2000) 2 VR 170
Hexiva v Lederer [2006] NSWSC 591
Irwin v Pamplin [2021] NSWSC 208

Texts Cited:
Glass, H, Seminars on Evidence (1970, Law Book Co. for New South Wales Bar Association)

Category: Costs
Parties: Ann Margaret Irwin (Plaintiff/Applicant)
Marie Dawn Pamplin (Defendant/Respondent)
Representation:
Counsel:
M Condon SC (Plaintiff/Applicant)
G George (Defendant/Respondent)
Solicitors:
Mersal & Associates Pty Limited (Plaintiff/Applicant)
Coleman Greig Lawyers (Defendant/Respondent)

File Number(s): 2014/173587
Publication restriction: Nil

Judgment

This judgment concerns the costs of an interlocutory application by the plaintiff. The application, which was made by way of notice of motion, sought orders for the examination of the defendant and two representatives of an accounting firm which acted for the defendant and various companies which she controlled.
The proceedings arose out of a family dispute. For convenience and without disrespect, I will refer to the parties and other members of the family by their given names.
The motion for examination followed allegations by the plaintiff (“Ann”) that each of the defendant (“Marie”), the companies which she controlled, and the accounting firm, had failed to comply with requests to produce documents pursuant to a notice to produce (in the case of Marie) and subpoenas (in the case of the companies and the accounting firm). The Court made examination orders as sought in December 2020 and the examination occurred in February 2021.
Marie now seeks that her costs of the motion be paid by Ann. Marie contends that the examination proved to be a pointless exercise and was ultimately a waste of the Court’s resources. Ann disputes Marie’s claim for costs, contending that the examination was necessary and clearly demonstrated that the requests for documentation had not been complied with.

Procedural background

There have been two related sets of proceedings in the Court involving a long-running dispute about the distribution of the estate of the late Adrian Dennis Pamplin (“Adrian”), who died in August 2013 at the age of 47. He did not have a will and is therefore taken to have died intestate: Succession Act 2006 (NSW), s 102. He never married nor had any children. His father…

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 Irwin v Pamplin (No 2)

Details

AGLC: Irwin v Pamplin (No 2) [2021] NSWSC 871
Case: [2021] NSWSC 871
Decision Date: 20 July 2021

CaseChat Overview and Summary

The case of Irwin v Pamplin (No 2) involved a dispute between the plaintiff, Irwin, and the defendant, Pamplin, regarding the sufficiency of compliance with a notice to produce and subpoenas. Irwin had issued a notice to produce and subpoenas to Pamplin and related entities. She challenged the adequacy of the compliance and successfully moved for an examination of the recipients under the Civil Procedure Act 2005 (NSW), section 68. Pamplin now seeks her costs for the motion, arguing there is a reason to depart from the usual rule that costs follow the event.

The primary legal issue before the court was whether there was a sufficient reason to depart from the standard principle that the costs of litigation follow the event. This principle is rooted in the general rule that the losing party in a legal dispute is responsible for the costs incurred by the winning party. However, Pamplin argued that exceptional circumstances warranted a deviation from this rule.

The court considered the relevant principles and precedents concerning costs and the circumstances of the case. It noted that while the general rule is that costs follow the event, there are exceptions where the court may exercise its discretion to order costs in a different manner. The court examined the nature of the motion, the conduct of the parties, and the public interest in the outcome. Ultimately, the court determined that there was no sufficient reason to depart from the usual rule, and Pamplin's application for her costs of the motion was dismissed.

In conclusion, the court ruled that Pamplin was not entitled to her costs for the motion, adhering to the standard principle that costs follow the event. The court's decision underscored the importance of the general rule in maintaining fairness and predictability in litigation, while also recognising the limited circumstances under which the court may deviate from this principle.

Orders