Supreme Court
New South Wales
Medium Neutral Citation: Morgan v Black (No 2) [2023] NSWSC 1158 Hearing dates: On the papers Date of orders: 26 September 2023 Decision date: 26 September 2023 Jurisdiction: Equity - Family Provision List Before: Nixon J Decision: Order that the Plaintiff pay the Defendant’s costs of the proceedings, as assessed or agreed, on the ordinary basis.
Catchwords: COSTS – Costs in family provision cases – General rule that costs follow the event – Greater than usual liberality is exercised in deciding whether to depart from the general rule in family provision claims – Whether the Court should depart from the general rule in the circumstances of this case – Plaintiff to pay the costs of the proceeding on the ordinary basis
Legislation Cited: Civil Procedure Act 2005 (NSW) s 98(1)
Succession Act 2006 (NSW) s 99(1)
Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.20(1)
Cases Cited: Chapple v Wilcox [2014] NSWCA 392
Haertsch v Whiteway(No 2) [2020] NSWCA 287
Jvancich v Kennedy (No 2) [2004] NSWCA 397
Morgan v Black [2023] NSWSC 1073
Category: Costs Parties: Tara Morgan (Plaintiff)
Janette Black (Defendant)Representation: Counsel:
Solicitors:
K Morrissey (Plaintiff)
S Chapple and D Yazdani (Defendant)
AJ Gardiman, Turner Freeman Lawyers (Plaintiff)
K Whitley, Bestic Law (Defendant)
File Number(s): 2022/237290 Publication restriction: Nil
Judgment
Introduction
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On 7 September 2023, I dismissed the Plaintiff’s claim for a family provision order out of the estate or notional estate of her father, the late Raymond Leslie Morgan (the deceased): Morgan v Black [2023] NSWSC 1073 (“the principal judgment”). In the reasons for Judgment handed down on that day, I determined that the Plaintiff had not shown sufficient cause for an extension of time to bring her application, and that an extension should be refused; and further, and in any event, the Plaintiff had not established that there are special circumstances which justify the making of a notional estate order, and that the orders sought should not be made.
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There is no estate or notional estate of the deceased from which any order for costs can be made. In those circumstances, I directed the parties to provide short submissions in respect of any proposed costs orders.
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The Defendant has sought an award of costs on the ordinary basis, and has provided a written set of submissions in support of that application.
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The Plaintiff indicated that she made no submissions in response to the Defendant’s application for costs.
The relevant principles
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The general power to award costs in s 98(1) of the Civil Procedure Act 2005 (NSW) provides that costs are in the discretion of the Court.
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The exercise of that general discretion is subject to r 42.1 of the Uniform Civil Procedure Rules 2005, which provides as follows:
“Subject to this Part, if the court makes any order as to costs, the court is to order that the costs…
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- AGLC
- Morgan v Black (No 2) [2023] NSWSC 1158
- Case
- [2023] NSWSC 1158
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether, in the unique circumstances of this case, it should depart from the usual principle that the losing party pays the costs of the proceeding. Family provision claims often involve complex and sensitive issues, and the court has traditionally exercised greater than usual liberality when determining whether to depart from the general rule of costs following the event. The court had to balance the need for fairness in family provision cases with the principle of costs following the event.
The court considered the particular circumstances of the case, including the nature of the dispute, the conduct of the parties, and the outcome of the proceedings. After careful deliberation, the court determined that the general rule should apply and that the plaintiff should bear the costs of the proceeding on the ordinary basis. This decision was based on the principle that costs should follow the event, with the exception of cases where exceptional circumstances warranted a departure from this rule.
The final orders of the court were that the plaintiff was to pay the costs of the proceeding on the ordinary basis, reflecting the court's adherence to the general rule regarding costs in family provision claims. This decision underscored the importance of maintaining the principle that costs follow the event, while also acknowledging the need for flexibility in exceptional cases.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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