Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Megerditchian v Khatchadourian (No 2) [2020] NSWSC 112 Hearing dates: 11 and 20 February 2020 Date of orders: 20 February 2020 Decision date: 20 February 2020 Jurisdiction: Equity Before: Parker J Decision: See [52]
Catchwords: COSTS – incidence of costs – family provision claim – amount of provision within District Court’s jurisdictional limit – whether plaintiff to be deprived of costs under UCPR r 42.34
COSTS – incidence of costs – family provision claim – informal offer – whether plaintiff’s rejection of offer reasonable
Legislation Cited: Civil Procedure Act 2005 (NSW), s 3(1)
District Court Act 1973 (NSW), ss 134(1), 134(1)(c), 134(2)
Family Provision Act 1982 (NSW), s 14
Succession Act 2006 (NSW), Ch 3, s 72(1)
Uniform Civil Procedure Rules 2005 (NSW), Pt 42 Div 3, rr 42.34, 42.34(1), 23.24(2)
Cases Cited: Calderbank v Calderbank [1976] Fam 93
Carusi-Lees v Carusi [2017] NSWSC 590
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Category: Costs Parties: Vanoush Megerditchian (Plaintiff)
Hampartzoum Khatchadourian (Defendant)Representation: Counsel:
Solicitors:
V R Gray (Plaintiff)
P Muscat (Defendant)
Corporate & Civil Legal (Plaintiff)
Shad Partners (Defendant)
File Number(s): 2018/318533 Publication restriction: Nil
Judgment – EX TEMPORE
Revised and reissued 25 February 2020
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In December last year I delivered my substantive judgment in these family provision proceedings under Ch 3 of the Succession Act 2006 (NSW): Megerditchian v Khatchadourian [2019] NSWSC 1870. The present judgment deals with the costs of the proceedings. It assumes familiarity with my earlier judgment.
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In my December judgment I concluded (provisionally) that provision ought to be made in favour of the plaintiff in the form of a legacy of $100,000, and that a half share of the deceased’s former family home at Willoughby, which had passed to the defendant by survivorship, should be designated as notional estate for the purpose of meeting that provision, together with any costs which it might be appropriate to award. My conclusion was provisional because I had to consider the effect of any costs order, and in particular whether the notional estate would be sufficient to meet it.
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As it happened, a half share of the property is ample to meet the proposed legacy, together with any costs order which might be made. The parties agreed on the terms of an order carrying my provisional decision into effect. I made an order in accordance with those terms at the hearing on 11 February.
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The remaining questions in the proceedings concern costs. These questions were debated before me on 11 February but I was not referred to all of the authority on one of the points raised. The determination of the application had to be postponed to allow for supplementary submissions on that question.
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The plaintiff seeks an order for costs in her favour. The defendant contends that the plaintiff is not entitled to an order for costs because of the effect of the Uniform Civil Procedure Rules 2005…
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- Case
- [2020] NSWSC 112
- Decision Date
CaseChat Overview and Summary
The court was required to determine the reasonableness of the plaintiff's rejection of the defendant’s informal offer and whether the plaintiff's rejection was sufficient to deprive them of their costs under the relevant rule. The court considered the content of the informal offer, the context in which it was made, and the plaintiff’s reasons for rejecting it. The court also examined the factors relevant to assessing the reasonableness of the plaintiff's decision, including the merits of the claim, the strength of the evidence, and the potential costs and risks associated with proceeding to trial.
In its reasoning, the court found that the rejection of the defendant’s informal offer was not unreasonable, considering the circumstances and the merits of the plaintiff’s case. The court held that the plaintiff was not deprived of their costs under rule 42.34. The court acknowledged the plaintiff's right to assess their claim and decide on the best course of action, and concluded that the plaintiff's decision was a reasonable one in the context of the case. The court further found that the plaintiff’s rejection of the offer did not warrant a deprivation of costs.
The final orders of the court included a determination that the plaintiff was not to be deprived of their costs, and that the defendant was ordered to pay the plaintiff’s costs of the proceeding.
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