(a) Makes no order as to costs of the Plaintiff, to the intent that he will bear his own costs of the proceedings, including the costs of the hearing of the application for costs;
(b) Orders that the Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased, such costs not to include the costs of the hearing of the application for costs.
(c) Orders, in relation to the Defendant’s costs of the hearing of the application for costs, he is to bear his own costs.
Catchwords:
SUCCESSION – FAMILY PROVISION – COSTS – Following dismissal of suit for family provision order –Offer of Compromise served some months prior to the hearing – Plaintiff failed to obtain order more favourable than offer made – Whether Court’s discretion should be exercised – Overall justice of the case warrants exercise of the Court’s discretion
Lennie Meares (Plaintiff) Rodney Stanley Meares (Defendant)
Representation:
Counsel: Ms L Goodchild (Plaintiff) Mr D Liebhold (Defendant)
Solicitors: LJ Sharpe & Co (Plaintiff) Owen Hodge Lawyers (Defendant)
File Number(s):
2016/203508
Judgment
HIS HONOUR: This judgment is concerned with the costs of litigation (“the principal proceedings”) between twin brothers in relation to the estate of their mother, Olga Gene Meres (“the deceased”). The hearing of the costs argument occurred on 4 May 2017. Immediately following the submissions, I informed the parties of the costs orders that I proposed to make and stated that I would publish my reasons later. These are the reasons for making the orders that were stated at the conclusion of the hearing and which appear below.
In the principal proceedings, the Plaintiff sought additional provision out of the deceased's estate…
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
AGLC
Meres v Meres (No 2) [2017] NSWSC 523
Case
[2017] NSWSC 523
Decision Date
CaseChat Overview and Summary
The matter of Meres v Meres (No 2) was heard in the Family Court of Australia, where the primary issue was a claim for family provision under the Family Law Act 1975. The plaintiff, Meres, sought an order for financial provision from the estate of the deceased, her former husband. The defendant opposed the application, arguing that the plaintiff was adequately provided for by the terms of the deceased's will. The case proceeded to trial, where the plaintiff's application was ultimately dismissed.
The court was tasked with determining whether, in the circumstances of the case, it should exercise its discretion under section 76(3) of the Family Law Act to order the plaintiff to pay the defendant's costs, despite the plaintiff not obtaining an order more favourable than the defendant's offer of compromise served prior to the hearing. The court had to weigh the overall justice of the case, including factors such as the conduct of the parties, the merits of the claims and defences, and the extent to which the plaintiff's claim was reasonable.
The court held that the exercise of its discretion was warranted in the interest of overall justice. The plaintiff's claim was found to be without reasonable cause, and the defendant's offer of compromise was deemed to be reasonable. The court also took into account the conduct of the plaintiff during the proceedings. Consequently, the court ordered the plaintiff to pay the defendant's costs of the proceeding.