Morgan v Black (No 2) - [2023] NSWSC 1158

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
Salmon v Osmond [2015] NSWCA 42
Singer v Berghouse [1993] HCA 35; 67 ALJR 708

Category: Costs
Parties: Tara Morgan (Plaintiff)
Janette Black (Defendant)
Representation:
Counsel:
K Morrissey (Plaintiff)
S Chapple and D Yazdani (Defendant)
Solicitors:
AJ Gardiman, Turner Freeman Lawyers (Plaintiff)
K Whitley, Bestic Law (Defendant)

File Number(s): 2022/237290
Publication restriction: Nil

Judgment

Introduction

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.
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.
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.
The Plaintiff indicated that she made no submissions in response to the Defendant’s application for costs.

The relevant principles

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.
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…

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 Morgan v Black (No 2)

Details

AGLC: Morgan v Black (No 2) [2023] NSWSC 1158
Case: [2023] NSWSC 1158
Decision Date: 26 September 2023

CaseChat Overview and Summary

The case of Morgan v Black (No 2) involved a family provision claim brought by the plaintiff against the estate of the deceased. The deceased had passed away, leaving a substantial estate, and the plaintiff sought a share of that estate under the Family Provision Act. The primary dispute in this case centred around the allocation of costs, particularly whether the Court should depart from the general rule that costs follow the event in family provision claims.

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