Le v Angius; Angius v Angius (No 2) - [2024] NSWSC 1417

Supreme Court

New South Wales

Medium Neutral Citation: Le v Angius; Angius v Angius (No 2) [2024] NSWSC 1417
Hearing dates: 23 September 2024
Date of orders: 7 November 2024
Decision date: 07 November 2024
Jurisdiction: Equity – Probate and Family Provision List – Family Provision
Before: Richmond J
Decision:
See [63]

Catchwords:
COSTS — No question of principle
COSTS — Payable out of a fund — Deceased estate
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers

Legislation Cited:
Civil Procedure Rules 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005

Cases Cited:
Chandrasekaran v Western Sydney Local Health District (T/A Westmead Hospital) (No 2) [2024] NSWCA 21
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Commonwealth Bank of Australia v Gretton [2008] NSWCA 117
Haertsch v Whiteway (No 2) [2020] NSWCA 287
Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298
Karpin v Gough (No 2) [2022] NSWSC 682
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2008] NSWCA 85
LCM Operations Pty Ltd v Robah Enterprises Pty Ltd (No 3) [2023] NSWSC 869
Le v Angius; Angius v Angius [2024] NSWSC 924
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Wheatley v Lakshmanan (No 2) [2022] NSWSC 851

Category: Costs
Parties:
Proceedings 2022/00041064
Thi Quy Le (Plaintiff)
Jenny Angius (Defendant)
Proceedings 2023/00031399
Natalie Angius (Plaintiff)
Jenny Angius (Defendant)
Representation:
Proceedings 2022/00041064
Counsel:
V Culkoff (Plaintiff)
M Painter SC (Defendant)

Solicitors:
AKN Legal (Plaintiff)
Mills Oakley (Defendant)

Proceedings 2023/00031399
Counsel:
M Pesman SC (Plaintiff)
M Painter SC (Defendant)
Solicitors:
Bay Legal (Plaintiff)
Mills Oakley (Defendant)

File Number(s): 2022/00041064 and 2023/00031399
Publication restriction: Nil

JUDGMENT

These reasons deal with the question of costs left outstanding by my decision in this matter on 1 August 2024: Le v Angius; Angius v Angius [2024] NSWSC 924 (Judgment). I will adopt the same abbreviations as in the Judgment.
In the Judgment I concluded that each plaintiff was entitled to an order for provision under s 59 of the Succession Act 2006 (NSW) (the Act). In the case of the first plaintiff, Ms Le, I rejected her claim that she was in a de facto relationship with the deceased at the time of his death, but accepted her alternative claim that she was an eligible person under s 57(1)(f) of the Act, and there were factors warranting the making of her application. I concluded that the deceased had made inadequate provision for Ms Le and that in all the circumstances the appropriate provision for her was the transfer to her of a commercial property in Waterloo referred to in the Judgment as Shop 3, and provision in the sum of $250,000.
In the case of the third plaintiff, Natalie, a granddaughter of the deceased, I concluded that she was an eligible person under s 57(1)(e) of the Act, and…

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

Case: [2024] NSWSC 1417
Decision Date: 07 November 2024

CaseChat Overview and Summary

In the matter of Le v Angius; Angius v Angius (No 2), the dispute was between family members regarding the distribution of a deceased estate. The case was heard in the Supreme Court of Victoria. The legal issues before the court involved the assessment of costs, particularly whether certain costs should be paid out of the deceased estate and if there were exceptional circumstances to deviate from the usual rule that costs follow the event. One of the central issues was whether a Calderbank offer, which is a settlement offer made without admission of liability, should affect the usual order for costs.

The court considered the principle that costs generally follow the event, but also examined the nature of the Calderbank offer and its impact on the proceedings. It was noted that such offers can sometimes influence the court's decision on costs, especially when they are made genuinely and without any preconditions. The court took into account the circumstances surrounding the offer and the conduct of the parties during the litigation. It determined that the Calderbank offer was genuine and without any preconditions, which meant that it could be a relevant factor in the costs assessment. The court also examined the overall fairness of the costs order, considering the parties' conduct and the outcome of the litigation.

The court concluded that the Calderbank offer had a significant impact on the assessment of costs. Given the genuine nature of the offer and the conduct of the parties, the court decided that certain costs should be paid out of the deceased estate. This decision was based on the need for fairness and the overall context of the litigation. The court ordered that specific costs, which were outlined in the judgment, be paid from the estate, and that other costs should be borne by the respective parties as determined by the court. This decision balanced the principles of costs following the event with the need for a fair outcome in the circumstances.

Orders