Megerditchian v Khatchadourian (No 2) - [2020] NSWSC 112

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
Liprini v Liprini [2008] NSWSC 423

Category: Costs
Parties: Vanoush Megerditchian (Plaintiff)
Hampartzoum Khatchadourian (Defendant)
Representation:
Counsel:
V R Gray (Plaintiff)
P Muscat (Defendant)
Solicitors:
Corporate & Civil Legal (Plaintiff)
Shad Partners (Defendant)

File Number(s): 2018/318533
Publication restriction: Nil

Judgment – EX TEMPORE

Revised and reissued 25 February 2020

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.
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.
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.
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.
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…

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.

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Details

Case: [2020] NSWSC 112
Decision Date: 20 February 2020

CaseChat Overview and Summary

The case of Megerditchian v Khatchadourian involved a family provision claim brought by the plaintiff against the defendant, the executor of the estate of the plaintiff’s father. The plaintiff sought a family provision order against the estate of the deceased. The dispute was heard in the Supreme Court of New South Wales. The core issue before the court was whether the plaintiff should be deprived of their costs under rule 42.34 of the Uniform Civil Procedure Rules 1999 (NSW) due to the rejection of an informal offer made by the defendant. The plaintiff’s claim was within the jurisdictional limit of the District Court, but was heard in the Supreme Court on the basis of urgency.

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.

Orders