Kuether v Kuether - [2020] NSWSC 1459

Supreme Court

New South Wales

Medium Neutral Citation: Kuether v Kuether [2020] NSWSC 1459
Hearing dates: On the papers
Date of orders: 21 October 2020
Decision date: 21 October 2020
Jurisdiction: Equity - Applications List
Before: Williams J
Decision:
The proceeding is dismissed with no order as to costs.

Catchwords:
COSTS – dispute between parties as to the plaintiff’s right to reside at property of the parties’ deceased father – proceeding commenced by the plaintiff to enforce rights under occupancy agreement entered into prior to death of deceased – defendant appointed joint executor under will of deceased – proceedings resolved without a determination on the merits – not appropriate to conduct a hypothetical trial for the purposes of determining a question of costs – no orders made as to the costs of the proceeding

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 26
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16 and 42.19

Cases Cited:
Baller Industries Pty Ltd v MeroMero Leasing Pty Ltd [2019] NSWSC 1067

Category: Costs
Parties: Will Paul Kuether (Plaintiff)
Monika Christianne Kuether (Defendant)
Representation: Solicitors:
Somerville Legal (Plaintiff)
Segelov Taylor Lawyers (Defendant)

File Number(s): 2020/136935
Publication restriction: N/A

Judgment

This is an application by the plaintiff for an order that the defendant pay his costs of this proceeding which was settled at a Court-annexed mediation in June 2020.
In summary, the plaintiff accepts that there has been no determination on the merits of the dispute between the parties but contends that he should nonetheless have his costs of the proceeding paid by the defendant because the defendant has capitulated.
The defendant opposes any order requiring her to pay the plaintiff’s costs. The defendant submits that the Court should either make no order as to costs, or order that each party pay their own costs of the proceeding. In the alternative, the defendant submits that any costs paid by the defendant should be limited to the period from the commencement of the proceeding on 7 May 2020 up until 11 May 2020.
The plaintiff relied on his affidavits affirmed on 10 and 31 July 2020. The defendant relied on her affidavits sworn on 10 May and 27 July 2020 and the affidavit of Tanya Segelov, a solicitor who has had carriage of part of the underlying dispute between the parties. Both parties prepared written submissions.
The parties indicated that they had no objection to the Court determining the issue of costs on the papers.

BACKGROUND

Egon Kuether (the deceased) died on 25 April 2019. The deceased’s children are the plaintiff (Will Kuether, who is 47 years old), the defendant (Monika Kuether, who is 52 years old) and Lydia Curtis, who is not a party to this proceeding. I shall refer to the deceased’s children by their first names, Will, Monika and Lydia, without intending any disrespect.
The deceased made his last will on 11 March 2019, under which he appointed Lydia and Monika as joint executors and bequeathed the whole of his estate…

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 Kuether v Kuether

Details

AGLC: Kuether v Kuether [2020] NSWSC 1459
Case: [2020] NSWSC 1459
Decision Date: 21 October 2020

CaseChat Overview and Summary

The case of Kuether v Kuether involved a dispute between the parties regarding the plaintiff's right to reside at the property of their deceased father. The plaintiff sought to enforce their rights under an occupancy agreement entered into prior to the death of the deceased. The defendant had been appointed as a joint executor under the will of the deceased. The proceedings were resolved without a determination on the merits. The court was tasked with deciding the appropriate allocation of costs between the parties.

The central legal issue before the court was whether it was appropriate to conduct a hypothetical trial to determine a question of costs. Given that the proceedings had been resolved without a determination on the merits, the court had to consider whether it was necessary to undertake a hypothetical trial to decide the issue of costs. The court also had to weigh the respective positions of the parties and the circumstances of the case to determine the appropriate allocation of costs.

The court found that it was not appropriate to conduct a hypothetical trial for the purposes of determining a question of costs. The court considered that the resolution of the proceedings without a determination on the merits did not warrant such a trial. The court also noted that it was not necessary to determine the merits of the dispute to resolve the issue of costs. The court ultimately concluded that it was not appropriate to conduct a hypothetical trial and made no orders as to the costs of the proceeding.

Orders