Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Johnston v Johnston [2016] NSWCA 52 Hearing dates: 11 March 2016 Date of orders: 21 March 2016 Decision date: 21 March 2016 Before: Ward JA at [1];
Leeming JA at [55];
Simpson JA at [56]Decision: 1. Grant leave to appeal.
2. Dismiss the appeal with costs.Catchwords: COSTS – costs following settlement of contested probate proceedings – where offer of compromise accepted by respondents (defendants at first instance) – application of Uniform Civil Procedure Rules 2005 (NSW) r 42.13A where offer proposed both consent to grant of probate in solemn form and payment of monetary sum to respondents – characterisation of offer of compromise as “mixed offer” proposing judgment both in favour of plaintiffs and defendants – r 42.13A inapplicable – where general costs discretion under s 98 Civil Procedure Act 2005 (NSW) not exercised – whether matter should be remitted Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 98
Supreme Court Act 1970 (NSW), s 101(2)(c)
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 20.27, 42.13A, 51.53Cases Cited: Calderbank v Calderbank [1975] 3 WLR 586
Estate of Moyle: Moyle v Moyle (Supreme Court (NSW), Santow J, 18 June 1998, unreported)
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Middlebrook v Middlebrook (1962) 36 ALJR 216
Orton v Smith (1873) LR 3 P & D 23
Owners Corporation SP 74667; 74670 and 74662 v Auburn City Council [2015] NSWSC 86
Perpetual Trustee Company Limited v Baker [1999] NSWCA 244
Prosperity Advisers Pty Ltd v Secure Enterprises Pty Ltd t/as Strathearn Insurance Brokers [2012] NSWCA 192
Re Estate late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311
Re Estate of Hodges (deceased); Shorter v Hodges (1988) 14 NSWLR 698
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Redroff v Miegoch (Supreme Court (NSW), Santow J, 22 April 1996, unreported)
Shorten v Shorten [2001] NSWSC 363
Shorten v Shorten [2002] NSWCA 73
Shorten v Shorten [2003] NSWCA 60
The Estate of Edward Richard Johnston [2015] NSWSC 1559Category: Principal judgment Parties: Anthony Kaye Johnston (First Applicant)
Zenith Patricia Grant (Second Applicant)
James Edward Breck Johnston (Third Applicant)
David Alan Johnston (First Respondent)
Fay Hogan (Second Respondent)Representation: Counsel:
Solicitors:
T Alexis SC with P Afshar (Applicants)
MR Tyson (Respondents)
Cole & Butler (Applicants)
Burridge & Legg (Respondents)
File Number(s): 2015/00333486 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity
- Citation:
- [2015] NSWSC 1559
- Date of Decision:
- 15 October 2015
- Before:
- Rein J
- File Number(s):
- 2014/00309451
HEADNOTE
[This Headnote is not to be read as part of the judgment]
This judgment relates to an application for leave to appeal from costs orders made following the settlement of contested probate proceedings in the Equity Division.
The applicants were the executors and sole beneficiaries under the will of the deceased. When they gave notice of their intended…
Continue reading Johnston v Johnston
Sign in free to access the full text
Details
- AGLC
- Johnston v Johnston [2016] NSWCA 52
- Case
- [2016] NSWCA 52
- Decision Date
CaseChat Overview and Summary
The appeal concerned the costs of contested probate proceedings that had been settled by an offer of compromise. The respondents, who were the defendants at first instance, accepted an offer made by the plaintiffs. This offer proposed both a consent to the grant of probate in solemn form and a monetary payment to the respondents. The central issue before the Court of Appeal of New South Wales was the application of rule 42.13A of the *Uniform Civil Procedure Rules 2005* (NSW) to the costs of the proceedings following this settlement.
The primary legal question was whether rule 42.13A, which governs costs where an offer of compromise is not accepted, applied to the circumstances of this case. Specifically, the court had to determine if the offer of compromise, which included both a consent to the grant of probate and a monetary payment, could be characterised as a "mixed offer" that proposed judgment in favour of both the plaintiffs and the defendants. If the offer was a mixed offer, then rule 42.13A would be inapplicable. The court also considered whether the general costs discretion under section 98 of the *Civil Procedure Act 2005* (NSW) had been exercised appropriately by the primary judge, and if not, whether the matter should be remitted.
The Court of Appeal held that the offer of compromise was indeed a "mixed offer" because it contemplated outcomes favourable to both parties – the grant of probate in solemn form (favourable to the plaintiffs) and a monetary payment (favourable to the defendants). Consequently, rule 42.13A was not applicable. The court found no error in the exercise of the general costs discretion under section 98 of the *Civil Procedure Act 2005* (NSW) and therefore did not remit the matter.
Leave to appeal was granted, but the appeal itself was dismissed. The respondents were awarded their costs of the appeal.
The primary legal question was whether rule 42.13A, which governs costs where an offer of compromise is not accepted, applied to the circumstances of this case. Specifically, the court had to determine if the offer of compromise, which included both a consent to the grant of probate and a monetary payment, could be characterised as a "mixed offer" that proposed judgment in favour of both the plaintiffs and the defendants. If the offer was a mixed offer, then rule 42.13A would be inapplicable. The court also considered whether the general costs discretion under section 98 of the *Civil Procedure Act 2005* (NSW) had been exercised appropriately by the primary judge, and if not, whether the matter should be remitted.
The Court of Appeal held that the offer of compromise was indeed a "mixed offer" because it contemplated outcomes favourable to both parties – the grant of probate in solemn form (favourable to the plaintiffs) and a monetary payment (favourable to the defendants). Consequently, rule 42.13A was not applicable. The court found no error in the exercise of the general costs discretion under section 98 of the *Civil Procedure Act 2005* (NSW) and therefore did not remit the matter.
Leave to appeal was granted, but the appeal itself was dismissed. The respondents were awarded their costs of the appeal.
Orders
Orders of the court
1. Grant leave to appeal.
2. Dismiss the appeal with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.