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McDonald v O'Connor (No 2)

McDonald v O'Connor (No 2)

Case [2019] NSWSC 344 2 April 2019

Family Provision

Costs

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: McDonald v O’Connor (No 2) [2019] NSWSC 344
Hearing dates: 21 March 2019
Date of orders: 02 April 2019
Decision date: 02 April 2019
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:

(a) Orders pursuant to s 59 of the Succession Act 2006 (NSW), that the Plaintiff receive, by way of provision, out of the estate of Mavis Valerie McDonald, a lump sum of $45,000.

(b) Orders that the burden of the provision made for the Plaintiff be borne by the share of the estate passing to the Defendant.

(c) Makes no order for the Plaintiff’s costs.

(d) Orders that the Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.
(e) Orders that the exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW), rule 31.16A, and Practice Note SC Gen 18, Paragraph 26.
Catchwords: SUCCESSION – FAMILY PROVISION – COSTS – following principal judgment in which a family provision order was made – Offer of Compromise served some months prior to the hearing – Plaintiff failed to obtain order more favourable than offer made – Nature and value of the estate of the deceased unclear, and not determined, until hearing – Whether overall justice of the case warrants exercise of the Court’s discretion to “otherwise order”
Legislation Cited: Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: AB v Curry (No 2) [2015] NSWSC 1209
Automotive Holdings Group Ltd v Prime Constructions Australia Pty Ltd (No. 2) [2019] NSWSC 315
Bates v Cooke (No 2) [2014] NSWSC 1322
Briggs v Mantz (No 2) [2014] VSC 487
Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266
Commonwealth of Australia v Gretton [2008] NSWCA 117
Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34
Hinderry v Hinderry (No 2) [2016] NSWSC 1577
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
McDonald v O’Connor [2019] NSWSC 261
Meres v Meres (No 2) [2017] NSWSC 523
Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344
Olsen v Olsen [2019] NSWSC 217
Pearson & Ors (The Joint Administrators of Lean Brothers International (Europe)) v Lehman Brothers Finance SA & Ors [2010] EWHC 3044 (Ch)
Rogers v Rogers [2018] NSWSC 1982
Singer v Berghouse (1993) 114 ALR 52; [1993] HCA 35
Smith v Smith (No 2) [2011] NSWSC 1105
Smith v Whittaker [2016] VSC 287
The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] 67 NSWLR 706; [2006] NSWCA 120
Category: Costs
Parties: Margaret May McDonald (Plaintiff)
Fiona O’Connor (Defendant)
Representation:
Counsel:
Mr A Lakeman (Plaintiff)
Mr J E F Brown (Defendant)
Solicitors:
& Legal (Plaintiff)
Marks Griffiths & Bova Solicitors (Defendant)

File Number(s): 2017/265419

Judgment

HIS HONOUR: This judgment is concerned with the costs…

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 McDonald v O'Connor (No 2)

Details

AGLC: McDonald v O'Connor (No 2) [2019] NSWSC 344
Case: [2019] NSWSC 344
Decision Date: 02 April 2019

CaseChat Overview and Summary

In the case of McDonald v O'Connor (No 2), the plaintiff, McDonald, sought a family provision order under the Family Provision Act. The dispute involved the estate of a deceased person, with McDonald contending that the distribution of the estate did not provide adequately for his needs. The matter was heard in the Supreme Court of New South Wales. The court was required to decide whether, under the circumstances, the plaintiff was entitled to a more favourable family provision order than that offered by the defendant, O'Connor, in an Offer of Compromise served before the hearing. The court also needed to consider whether the costs incurred by McDonald were justified given the outcome of the proceedings.

The court analysed the nature of the Offer of Compromise and whether McDonald had obtained an order more favourable than what was proposed. The court noted that the value and nature of the estate were not determined until the hearing, which complicated the assessment of the fairness of the Offer. The court examined the overall justice of the case and whether the exercise of its discretion to "otherwise order" costs was warranted. The court concluded that given the circumstances, including the timing of the Offer and the uncertainty of the estate's value, it was just to order costs in the manner specified.

The court determined that the overall justice of the case did not warrant an exercise of its discretion to "otherwise order" costs, given that McDonald did not secure a more favourable order than the one proposed. Consequently, the court ruled that the costs incurred by McDonald were not to be awarded as the plaintiff had not obtained a more favourable outcome than the defendant's offer. The court's decision underscored the importance of the timing of the Offer of Compromise and the necessity of clarity regarding the estate's value in such family provision disputes.

Orders