Lewis v Lewis (No 2)

[2021] NSWCA 259

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Lewis v Lewis (No 2) [2021] NSWCA 259

Hearing dates:

On the papers

Decision date:

26 October 2021

Before:

Meagher JA, Leeming JA, Payne JA

Decision:

1.  Order that Peter’s costs of the appeal and cross-appeal be paid out of the estate of the late Pamela Lewis, on terms that upon payment the Administrator of the estate shall be subrogated to Peter’s entitlement under order 3 made on 6 August 2021.

2.  Order that Peter’s costs of the notice of motion filed on 20 August 2021 be included in Peter’s costs of the appeal.

Catchwords:

COSTS – supplementary order concerning costs – successful respondent sought further order entitling his costs in successful defence of appeal to be paid out of estate with administrator subrogated to respondent’s costs order – orders corresponded to form of orders made by trial judge which were unchallenged by appeal or cross-appeal – orders made

Legislation Cited:

Uniform Civil Procedure Rules, r 36.16

Cases Cited:

Lewis v Lewis (No 2) [2020] NSWSC 1519

Lewis v Lewis [2021] NSWCA 168

Category:

Costs

Parties:

David Grant Lewis (Appellant; Cross-respondent)
Peter Howarth Lewis (First Respondent; Cross-appellant)
Jeremy Neil Glass (Second Respondent, submitting)

Representation:

Counsel:
R Wilson SC (Appellant; Cross-respondent)
LJ Ellison SC (First Respondent; Cross-appellant)

Solicitors:
Walker & White (Appellant; Cross-respondent)
L Rundle & Co Solicitors (First Respondent; Cross-appellant)

File Number(s):

2020/00317667

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Probate List

Citation:

[2020] NSWSC 1306

Date of Decision:

25 September 2020

Before:

Parker J

File Number(s):

2017/130576

Judgment

1. THE COURT: On 6 August 2021, this Court gave judgment in Lewis v Lewis [2021] NSWCA 168 and made three orders:

“1. Appeal dismissed.

2. Cross-appeal dismissed.

3. The appellant David Lewis to pay the costs of the first respondent Peter Lewis of the appeal and cross-appeal.”

2. By notice of motion filed on 20 August 2021, Peter seeks a further order as to costs, namely:

“order that the first respondent’s solicitor-client costs of the proceedings be paid out of the estate of the late Pamela Lewis, on terms that upon payment the Administrator of the estate shall be subrogated to the first respondent’s entitlement under order 3 and the payment charged against the appellant’s entitlement as a beneficiary of the estate of the late Pamela Lewis.”

3. David opposes that order, although it is accepted that the application was made within the time specified by UCPR r 36.16. The parties have exchanged written submissions in accordance with a timetable directed by the Registrar, and have not sought for there to be an oral hearing. The second respondent has continued to take an inactive role in the appeal.

The parties’ submissions

4. In support of the application, Peter points to a comparable order made by the primary judge on 29 October 2020 in Lewis v Lewis (No 2) [2020] NSWSC 1519. His Honour had ordered that David pay…