Moussa v Moussa

Case [2006] NSWSC 509


CITATION: Moussa v Moussa - Costs [2006] NSWSC 509
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 24/04/06
 
JUDGMENT DATE : 

29 May 2006
JURISDICTION: Equity Division
JUDGMENT OF: Barrett J
DECISION: No order as to costs
CATCHWORDS: PROCEDURE - costs - Family Provision Act claim - where plaintiff's claim had merit but failed because of greater need for claims of widow and young child to be met out of estate consisting of matrimonial home only - no order as to costs
LEGISLATION CITED: Civil Procedure Act 2005, s.98
Family Provision Act 1982, s.33
Uniform Civil Procedure Rules 2005, rule 42.1
CASES CITED: Bearns v Bearns-Hayes (unreported, NSWSC, Young J, 6 May 1997)
Coombes v Ward (No 2) [2002] VSC 84
Jvancich v Kennedy (No 2) [2004] NSWCA 397
Re Sherborne Estate (No 2); Vanvalen v Neaves [2005] NSWSC 1003
Singer v Berghouse (1993) 114 ALR 521
PARTIES: Therese Mary Moussa and Samuel Latif Moussa by their next friend Anita Devi Gounder - Plaintiffs
Deborah Veronica Moussa - Defendant
FILE NUMBER(S): SC 5147/04
COUNSEL: Mr J.R. Wilson SC - Plaintiffs
Mr L.J. Ellison SC - Defendant
SOLICITORS: The Hargreaves Practice - Plaintiffs
MacLarens - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY, 29 MAY 2006

5147/04 THERESE MARY MOUSSA AND SAMUEL LATIF MOUSSA BY THEIR NEXT FRIEND ANITA DEVI GOUNDER v DEBORAH VERONICA MOUSSA

JUDGMENT ON COSTS

1 I am dealing with the question of costs in consequence of dismissal of the plaintiffs’ claims under the Family Provision Act 1982: see Moussa v Moussa [2006] NSWSC 352. The plaintiffs were the teenaged children of the deceased by his first wife who was their tutor for the purposes of the proceedings.

2 The successful defendant (the widow of the deceased and the administratrix of his intestate estate) says that the court should order the unsuccessful plaintiffs to pay her costs – recognising that the burden of any such costs order will fall upon the tutor (their mother): see the commentary at paragraph 7.15.30 of Ritchie’s “Uniform Civil Procedure NSW”. The plaintiffs say that there should be no order as to costs, so that each side bears its own costs.

3 It is noted in submissions that the question of costs in this case is governed by not only s.98 of the Civil Procedure Act 2005 but also s.33 of the Family Provision Act. There is comment about the interaction between the two (or, more precisely, between the Family Provision Act provision and the relevant provision of the Supreme Court Act as then in force) in Bearns v Bearns-Hayes (unreported, NSWSC, Young J, 6 May 1997):

          “There is a tension between s.76 of the Supreme Court Act , which gives the Court a judicial discretion as to costs and s.33 of the Family Provision Act 1982, which partly deals with costs in that it makes limitations on orders against the estate. A very…

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Moussa v Moussa [2006] NSWSC 509
Case
[2006] NSWSC 509
Decision Date

CaseChat Overview and Summary

The case before the court was between Moussa and Moussa, involving a dispute over the distribution of an estate under the Family Provision Act. The plaintiff, Moussa, sought a share of the estate, which consisted of the matrimonial home, arguing that it should be distributed according to the Act rather than the intestacy rules. The defendant, also Moussa, argued that the estate should be distributed to the widow and young child, who had greater needs. The matter was heard in the Family Court of Australia.

The central legal issue the court had to decide was whether the plaintiff's claim under the Family Provision Act had merit and, if so, whether it should be granted given the greater needs of the widow and child. The court needed to weigh the plaintiff's claim against the needs of the other beneficiaries and determine if the estate was sufficient to meet all claims.

The court found that while the plaintiff's claim had merit, it failed to be granted because the widow and child had a greater need for the estate. The court considered the statutory criteria and the evidence presented, ultimately concluding that the estate, consisting solely of the matrimonial home, was inadequate to meet all the claims. The court held that no order as to costs should be made due to the merit in the plaintiff's claim despite its failure.

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