Liberty Teal Griffin (by her Tutor Shelley Candice Griffin) v David Raymond Coe (both in his capacity as Executor of the estate of the late Phillip Mark Griffin and in his personal capacity) (No. 2)

[2012] NSWSC 1239

Supreme Court

New South Wales

Medium Neutral Citation:

Liberty Teal Griffin (by her Tutor Shelley Candice Griffin) v David Raymond Coe (both in his capacity as Executor of the estate of the late Phillip Mark Griffin & in his personal capacity) (No. 2) [2012] NSWSC 1239

Hearing dates:

15 October 2012

Decision date:

15 October 2012

Jurisdiction:

Equity Division

Before:

Davies J

Decision:

1. The Plaintiffs to pay the Second Defendant's costs of and incidental to the Second Defendant's Notice of Motion dated 15 February 2012.

2. The Plaintiffs to pay the Second Defendant's costs of and incidental to the Plaintiff's Notice of Motion dated 28 June 2012 (including the costs of and incidental to the mention on 27 June 2012).

3. The Plaintiffs to pay the Second Defendant's costs of the claim made against the Second Defendant in respect of the pre-probate period.

4. The Plaintiffs' tutor to pay to the Second Defendant the costs that the Plaintiffs are ordered to pay in accordance with orders 1, 2 and 3 above.

5. The Plaintiffs to pay the Second Defendant's costs thrown away by reason of any amendment to the Amended Statement of Claim.

6. The Plaintiffs' tutor to pay to the Second Defendant the costs that the Plaintiffs are ordered to pay in accordance with order 5 above.

Catchwords:

PROCEDURE - costs - motion for summary dismissal and/or strike out of statement of claim - application for leave to re-open - costs of re-opening - defendant successful in having part of claim summarily dismissed - whether costs should be payable forthwith.

Legislation Cited:

Uniform Civil Procedure Rules

Cases Cited:

Australian Property Custodian Holdings limited (In Liquidation) [2012] NSWSC 881
Gaskin v Ollerenshaw [2010] NSWSC 788
Lucantonio v Kleinert [2009] NSWSC 1277
Griffin v Coe [2012] NSWSC 412
Ritson v Gay and Lesbian Community Publishing Limited [2012] NSWSC 586

Category:

Costs

Parties:

Liberty Teal Griffin (by her tutor Shelley Candice Griffin) (First Plaintiff)
Max Edward Griffin (by his tutor, Shelley Candice Griffin) (Second Plaintiff)
David Raymond Coe (both in his capacity as executor of the estate of the late Philip Mark Griffin and his personal capacity) (First Defendant)
Neil Sidney Matthews (both in his capacity as executor of the estate of the late Philip Mark Griffin and his personal capacity) (Second Defendant)
Timothy John Christiansen (both in his capacity as executor of the estate of the late Philip Mark Griffin and his personal capacity) (Third Defendant)

Representation:

Counsel:
M Sneddon (Plaintiffs)
M Newton (Second Defendant)
Solicitors:
C P White & Hetherington (Plaintiffs)
HWL Ebsworth (Second Defendant)

File Number(s):

2011/121962

Judgment

1. I gave judgment on a Notice of Motion by the Second Defendant for summary dismissal and/or strike out of proceedings against him, such decision having been given on 14 September 2012: Griffin v Coe [2012] NSWSC 412. The matter has been listed today in relation to the appropriate costs order to make.

1. The parties have agreed to some extent on the cost orders that should be made. I have been provided with a form of Short Minutes of Order by the Plaintiffs containing an agreement to pay costs on the four bases specified there. Subject to paragraph (d) of that document reading "costs thrown away by reason of any amendment to the pleading against the Second Defendant", the Second Defendant is in agreement with the substance of those proposed orders. However, the Second Defendant has provided his own form of orders dealing with payment by the tutor of the Plaintiffs in a way said to have been sanctioned by the Court of Appeal.

1. The Second Defendant seeks two additional orders. The first is that the costs of the re opening application should be paid on an indemnity basis. Reference is made to Garling J's decision in Gaskin v Ollerenshaw [2010] NSWSC 788 where his Honour referred to the prejudice suffered by the other party and then without further reasons for doing so made an order that the plaintiff pay the costs of the Motion and the taking of additional evidence on an indemnity basis.

1. Reference is also made to Brereton J's decision in Lucantonio v Kleinert [2009] NSWSC 1277. Brereton J said at [12] that the leave to re-open involved an indulgence to the plaintiff which was occasioned by inadequate attention to his discovery obligations in the past. He ordered that the plaintiffs should pay the defendant's costs of the application on an indemnity basis.

1. Neither of the Judges in those cases offered further reasons for making the costs payable on an indemnity costs.

1. I set out the considerations for deciding that the Plaintiffs' application to re-open should be acceded to in paragraph [50] of my earlier judgment. I note also that, although some of the material put forward on that application was available when the original motion was argued, not all of it was. That came about because of the procedural directions which had been given by Bergin CJ in Eq who has been case managing the proceedings.

1. Further, as some of the documents upon which the Plaintiffs relied for the re- opening were considered by me to be probative of the issues and to require consideration, I do not consider that there was any unreasonable behaviour on the part of the Plaintiffs or any lack of diligence in relation to some of the material.

1. The Plaintiffs were successful in having the application re opened. In those circumstances, although it is appropriate that the Plaintiff pay the costs of the re-opening because the Plaintiffs were seeking an indulgence, the costs should be payable on the ordinary basis.

1. The other matter for which the Second Defendant contends is that the costs, which it is agreed should be paid in relation to paragraphs (a), (b) and (c) in the Plaintiffs' short minutes of order, should be payable forthwith pursuant to the power given in r 42.7 UCPR. Reliance is placed on Ritson v Gay and Lesbian Community Publishing Limited [2012] NSWSC 586 particularly at [4], and also the matter of Australian Property Custodian Holdings limited (In Liquidation) [2012] NSWSC 881 at [16]. The significant matter in those cases was that of deciding of a discrete issue or a discrete part of the proceedings. In both cases that was held to justify an order that the costs should be payable forthwith.

1. Mr Newton of counsel for the Second Defendant submits that my approach to the consideration of the Second Defendant's application was to look at the pre-probate claim and the post-probate claim. He submits that those matters were separate and discrete, and that the Second Defendant was entirely successful in relation to the pre-probate claim.

1. Mr Sneddon of counsel for the Plaintiffs has informed me that there is an application before the Chief Judge for leave to replead the post-probate claim because it was not re-pleaded in the time that I allowed in my judgment of 14 September. If that leave is not given the Second Defendant will be out of the proceedings entirely. If that leave is given the Second Defendant will need to defend the proceedings in relation to the post-probate claim.

1. I do not think that the pre-probate and post-probate claims are sufficiently discrete issues for the purposes of r 42.7 and the question of whether the costs should be payable forthwith. The underlying factual matters that are and will be an issue if the proceedings go to trial against the Second Defendant are the same for the pre-probate and the post-probate claim. In that way, the present proceedings seem to me to be distinguishable particularly from the position in Ritson.

1. In my opinion, the course proposed by Mr Sneddon should be adopted. That is, the usual order should take effect that the costs are payable at the conclusion of the proceedings. If however, the Plaintiffs are not given leave to replead the post-probate claim the parties may avail themselves of the liberty to apply which I shall grant to return to argue the issue of the payment of the costs against the Second Defendant forthwith rather than at the end of the proceedings.

1. The orders I make are these:

1. The Plaintiffs to pay the Second Defendant's costs of and incidental to the Second Defendant's Notice of Motion dated 15 February 2012.

2. The Plaintiffs to pay the Second Defendant's costs of and incidental to the Plaintiff's Notice of Motion dated 28 June 2012 (including the costs of and incidental to the mention on 27 June 2012).

3. The Plaintiffs to pay the Second Defendant's costs of the claim made against the Second Defendant in respect of the pre-probate period.

4. The Plaintiffs' tutor to pay to the Second Defendant the costs that the Plaintiffs are ordered to pay in accordance with orders 1, 2 and 3 above.

5. The Plaintiffs to pay the Second Defendant's costs thrown away by reason of any amendment to the Amended Statement of Claim.

6. The Plaintiffs' tutor to pay to the Second Defendant the costs that the Plaintiffs are ordered to pay in accordance with order 5 above.

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Decision last updated: 24 October 2012