Nicholls v Hall (No 2) - [2008] NSWCA 20

New South Wales

Court of Appeal

CITATION: Nicholls v Hall and Ors (No 2) [2008] NSWCA 20

HEARING DATE(S): written submissions

JUDGMENT DATE:
6 March 2008

JUDGMENT OF: Mason P; Hodgson JA; McColl JA

DECISION: Case not made out to alter the costs orders previously made.

CATCHWORDS: COSTS – Family provision – Appeal – Appeal court awards appellant one-seventh share of estate – Offer of compromise at first instance but not on appeal – No effect on costs of appeal – Offer of sum greater than amount resulting from appeal decision, but less than amount appellant would have received if costs not incurred – Costs orders in favour of appellant confirmed.

LEGISLATION CITED: Uniform Civil Procedure Rules 2005, Pt 42 r 15

CATEGORY: Consequential orders

CASES CITED: Fotheringham v Fotheringham No. 2 (1999) 46 NSWLR 154
Moore v Woodforth (No. 2) [2003] NSWCA 46

PARTIES: David Norman NICHOLLS (appellant)
Deborah Anne HALL (first respondent)
Gregory Robert HALL (second respondent)
Donna Louise ROBINSON (third respondent)
Gregory James ROBINSON (fourth respondent)
Deanne Elizabeth DAY (fifth respondent)
Colin William DAY (sixth respondent)

FILE NUMBER(S): CA 40832/06

COUNSEL: L ELLISON SC (Appellant)
J R WILSON SC/ D LIEBHOLD (Respondents)

SOLICITORS: Turnbull Hill Lawyers (Appellant)
Kells the Lawyers (Respondents)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 2998/05

LOWER COURT JUDICIAL OFFICER: Young CJ in Eq

LOWER COURT DATE OF DECISION: 12 December 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 1377

CA 40832/06
SC 2998/05

MASON P
HODGSON JA
McCOLL JA
6 MARCH 2008

David Norman NICHOLLS v Deborah Anne HALL and Ors (No 2)

Judgment

1 THE COURT: On 13 December 2007, the Court gave its judgment in this appeal ([2007] NSWCA 356), and made the following orders:

(2) Orders below set aside, and in lieu thereof order that the estate of the deceased be divided between the daughters of the deceased and the appellant in the proportions of two-sevenths to each daughter and one-seventh to the appellant.

(3) Order that the costs of the respondents below and on appeal be paid out of the estate of the deceased on an indemnity basis.

(4) Order that the costs of the appellant of the proceedings below be paid out of the estate of the deceased.

(5) Order that the respondents pay the appellant’s costs of the appeal, and have a certificate under the Suitors’ Fund Act if otherwise entitled, and that they be reimbursed for these costs from the estate of the deceased.

2 On application made on that occasion by the respondents, the Court gave liberty to the respondents to apply for different costs orders.

3 The respondents have now done so, relying on an offer of compromise dated 4 August 2006, by which the respondents offered to compromise the appellant’s claim by paying him $160,000 plus his costs. They contend that the appellant obtained an order less favourable to him, because after deducting from the net estate of $1.3 million 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 Nicholls v Hall (No 2)

Details

AGLC: Nicholls v Hall (No 2) [2008] NSWCA 20
Case: [2008] NSWCA 20
Decision Date: 6 March 2008

CaseChat Overview and Summary

The appeal concerned costs orders made in a family provision claim. The appellant, Nicholls, had sought provision from the estate of the deceased, Hall. The primary judge had made an order for provision, and Nicholls had appealed that decision. The Court of Appeal ultimately awarded Nicholls one-seventh share of the estate.

The central legal issue before the Court of Appeal was whether the costs orders previously made should be altered in light of the outcome of the appeal. Specifically, the court considered the effect of an offer of compromise made at first instance, and the absence of a similar offer on appeal, on the costs of the appeal.

The Court of Appeal reasoned that the offer of compromise made at first instance, which was for a sum greater than the amount Nicholls ultimately received on appeal, did not warrant altering the costs orders. This was because the offer was less than the amount Nicholls would have received had costs not been incurred. Furthermore, the absence of a formal offer of compromise on appeal meant that the usual principles regarding costs in the absence of such an offer applied. The court confirmed the costs orders in favour of the appellant.

Orders

Orders of the court

Case not made out to alter the costs orders previously made.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Nicholls v Hall and Ors (No 2) [2008] NSWCA 20
HEARING DATE(S):	written submissions
JUDGMENT DATE:	6 March 2008
JUDGMENT OF:	Mason P; Hodgson JA; McColl JA
DECISION:	Case not made out to alter the costs orders previously made.
CATCHWORDS:	COSTS – Family provision – Appeal – Appeal court awards appellant one-seventh share of estate – Offer of compromise at first instance but not on appeal – No effect on costs of appeal – Offer of sum greater than amount resulting from appeal decision, but less than amount appellant would have received if costs not incurred – Costs orders in favour of appellant confirmed.
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005, Pt 42 r 15
CATEGORY:	Consequential orders
CASES CITED:	Fotheringham v Fotheringham No. 2 (1999) 46 NSWLR 154 Moore v Woodforth (No. 2) [2003] NSWCA 46
PARTIES:	David Norman NICHOLLS (appellant) Deborah Anne HALL (first respondent) Gregory Robert HALL (second respondent) Donna Louise ROBINSON (third respondent) Gregory James ROBINSON (fourth respondent) Deanne Elizabeth DAY (fifth respondent) Colin William DAY (sixth respondent)
FILE NUMBER(S):	CA 40832/06
COUNSEL:	L ELLISON SC (Appellant) J R WILSON SC/ D LIEBHOLD (Respondents)
SOLICITORS:	Turnbull Hill Lawyers (Appellant) Kells the Lawyers (Respondents)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 2998/05
LOWER COURT JUDICIAL OFFICER:	Young CJ in Eq
LOWER COURT DATE OF DECISION:	12 December 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	[2006] NSWSC 1377