Misek v McBride (No. 2) - [2017] NSWSC 796

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Misek v McBride (No. 2) [2017] NSWSC 796
Hearing dates: 7 June 2017
Date of orders: 20 June 2017
Decision date: 20 June 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
The plaintiff’s offer of compromise served on 3 March 2016 is compliant with UCPR, r 20.26. Defendant is ordered to pay out of the estate the plaintiff’s costs of the proceedings, including the costs of the costs argument, on the indemnity basis on and from 4 March 2016 and otherwise on the ordinary basis. But the defendant is only required to pay 80 per cent of the plaintiff’s costs, on account of the defendant’s success on each of the secret trust and constructive trust claims.

Catchwords: COSTS – plaintiff successful – Court makes orders on 18 April 2017 for family provision by way of a legacy of $460,000 out of deceased’s estate – plaintiff notifies a pre-trial offer of compromise to the defendant on 3 March 2016 in the sum of $349,000 plus costs “on a party - party basis”, be paid out of the estate of the deceased - whether plaintiff’s offer of compromise is compliant with UCPR, r 20.26 and entitles the plaintiff to an award of indemnity costs – whether the defendant’s success on the two non-family provision issues, the secret trust and constructive trust claims, warrants any reduction in the costs awarded to the plaintiff, and if so by what amount.
Legislation Cited: Succession Act 2006, Part 3
Uniform Civil Procedure Rules 2005, rr 20.26, 42.14
Cases Cited: Bostik Australia Pty Ltd v Liddiard (No. 2) [2009] NSWCA 304
Calderbank v Calderbank [1975] 3 All ER 333
James v Surf Road Nominees (No. 2) [2005] NSWCA 296
Elite Protective Personnel Pty Limited v Salmon (No. 2) [2007] NSWCA 373
Jojeni Investments Pty Ltd v Mosman Municipal Council (No. 2) [2015] NSWCA 208
McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306
Misek v McBride [2017] NSWSC 406
Shellharbour City Council v Johnson (No. 2) (2006) 67 NSWLR 308
Category: Costs
Parties: Plaintiff: Kylie Anne Misek
Defendant: Cheryl Patricia McBride
Representation:
Counsel:
Plaintiff: L. Ellison SC
Defendant: K. Burke
Plaintiff: Ms Monica Ross-Maranik, Keypoint Law
Defendant: Warwick Hart, Shaw McDonald

File Number(s): 2015/164625
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. In the Court’s first judgment, the Court ordered that there be provided to the plaintiff out of the estate of the late Patricia Ila Stuart a legacy in the sum of $460,000: Misek v McBride [2017] NSWSC 406 (“the principal judgment”). The Court ordered payment of that legacy in the principal judgment under Succession Act 2006, Part 3 on the basis that adequate provision had not been made under the will of the deceased for the plaintiff’s maintenance, education and advancement in life. But the Court was not satisfied that the plaintiff’s additional secret trust and power of attorney/constructive trust claims were established and dismissed them.
The orders made at the…

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 Misek v McBride (No. 2)

Details

AGLC: Misek v McBride (No. 2) [2017] NSWSC 796
Case: [2017] NSWSC 796
Decision Date: 20 June 2017

CaseChat Overview and Summary

The matter of Misek v McBride (No. 2) involved a dispute concerning family provision claims under the Succession Act 2006 (NSW), with the plaintiff seeking a legacy from the estate of a deceased individual. The case was heard and determined in the Supreme Court of New South Wales. The court had previously made orders on 18 April 2017, requiring the defendant to provide a family provision by way of a legacy of $460,000 from the deceased’s estate. The plaintiff had served a pre-trial offer of compromise on the defendant on 3 March 2016, proposing a settlement amount of $349,000 plus costs, payable from the estate of the deceased.

The central legal issues before the court were whether the plaintiff's offer of compromise complied with the requirements of UCPR, rule 20.26, and if so, whether this entitled the plaintiff to an award of indemnity costs. Additionally, the court had to determine whether the defendant's success on two non-family provision issues—the secret trust and constructive trust claims—warranted any reduction in the costs awarded to the plaintiff, and if so, by what amount.

In addressing these issues, the court found that the plaintiff's offer of compromise was indeed compliant with UCPR, rule 20.26, and thus entitled the plaintiff to an award of indemnity costs. The court further considered the defendant's success on the secret trust and constructive trust claims, which were not related to the family provision order. The court concluded that the defendant's partial success did not warrant a significant reduction in the costs awarded to the plaintiff, given the overall success on the primary family provision claim.

The court's final orders reflected these findings, confirming the plaintiff's entitlement to indemnity costs and making specific adjustments based on the partial success of the defendant on unrelated issues.

Orders