Marshall v Carruthers; Marshall v Marshall

[2002] NSWCA 86

CITATION:	Marshall v. Carruthers; Marshall v. Marshall [2002] NSWCA 86
FILE NUMBER(S):	CA 40670/01; 40671/01
HEARING DATE(S):	22 February 2002
JUDGMENT DATE:	22 February 2002
PARTIES :	Margaret Lesley Marshall - appellant Linda Hope Carruthers - respondent (40670/01) Kim Neil Marshall - respondent (40671/01)
JUDGMENT OF:	Hodgson JA at 1-10, 13-15; Young CJ in Eq at 11; Palmer J at 12

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	ED5141/00 ED2839/01
LOWER COURT JUDICIAL OFFICER :	Master Macready

COUNSEL:	Mr. C. Bevan for appellant Mr. L. Ellison for Ms. Carruthers Submitting appearance by Mr. Kim Marshall
SOLICITORS:	Turner Freeman, Sydney for appellant Teece Hodgson & Ward, Sydney for respondent
CATCHWORDS:	COSTS - SUCCESSION - Family provision and maintenance - Appeal succeeds on point not clearly notified before trial. ND.
DECISION:	See pars.4, 10, 14

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40670/01

HODGSON J
YOUNG J
PALMER J

MARGARET LESLEY MARSHALL v LINDA HOPE CARRUTHERS

JUDGMENT (On Costs)

1 HODGSON J: The matter that we have been discussing concerns the costs of the appeal. The order that we are minded to make is that, although Kim will have to pay the costs of the notice of appeal and any costs solely referrable to his appeal, the other costs, including today’s costs, should be, in effect, costs in the appeal in relation to Ms Carruther’s case, and that she will have to bear those costs, that is the costs of today.

2 There were some separate written submissions prepared in relation to Kim’s appeal. They will have to be paid by Kim.

DISCUSSION ENSUED

3 HODGSON J: We have now heard submissions as to costs. In relation to costs of the appeal, in my opinion, it is clear that those costs should follow the event.

4 There are some costs that are referrable to both appeals, notably the costs of today’s hearing. I think, having regard to the substantive issues and the substantive contestants, it is appropriate that those costs be borne by Ms Carruthers. So, in relation to each appeal, the order will be that the respondent pay the appellant’s costs of the appeal, but that will be further clarified by indicating that the costs payable by Kim will be those costs that are referrable solely to his appeal, and all the other costs of both appeals are to be borne by Ms Carruthers.

5 Coming to the question of costs at first instance, in my opinion the result determined by this Court depends on two matters: firstly, the determination by this Court of the trust issue, and secondly, to a lesser extent, the augmentation to Ms Carruthers’ assets occurring by reason of the workers’ compensation decision.

6 I have already referred to submissions by Mr Ellison to the effect that the trust issue was not raised by the Master. The determination of this Court is that it was sufficiently raised to require the Master to determine it.

7 However,…