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Noble v Durrant (No 2)

Noble v Durrant (No 2)

Case [2023] NSWSC 835 17 July 2023

Costs

Family Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Noble v Durrant (No 2) [2023] NSWSC 835
Hearing dates: 30 May 2023
Date of orders: 17 July 2023
Decision date: 17 July 2023
Jurisdiction: Equity - Family Provision List
Before: Richmond J
Decision:
Costs follow the event.

Catchwords:
COSTS — costs in family provision proceedings — where applicants unsuccessful — where Calderbank offer made — indemnity costs not ordered

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(1)
Succession Act2006 (NSW), s 99
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Brindley v Wade (No 2) [2020] NSWSC 882
Calderbank v Calderbank [1975] 3 All ER 333
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1
Haertsch v Whiteway (No 2) [2020] NSWCA 287
Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298
Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141
Noble v Durrant [2023] NSWSC 513
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Preston v Nikolaidis [2017] NSWSC 1527
Singer v Berghouse [1993] HCA 35; 114 ALR 521
Wheatley v Lakshmanan (No 2) [2022] NSWSC 851
Sherborne Estate (No 2); Vanvalen v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003

Category: Costs
Parties: Charlotte Noble (First Plaintiff)
Carolyn Noble (Second Plaintiff)
Donald Henry Durrant (First Defendant)
Linda Mae Allen (Second Defendant)
Representation:
Counsel:
Ms D Reid (Plaintiffs)
Mr N Bilinsky (Defendants)
Solicitors:
Premier Compensation Lawyers (Plaintiffs)
Parker & Kissane (Defendants)

File Number(s): 2021/00200483

JUDGMENT

The plaintiffs in these proceedings made an unsuccessful application for provision out of the estate of their aunt, the late Belinda Noble: Noble v Durrant [2023] NSWSC 513 (Judgment). Following judgment, the parties were directed to file submissions and they were heard on the issue of costs on 30 May 2023.
The defendants, who are the executors of the deceased’s estate, seek an order that the plaintiffs pay their costs of the proceedings, assessed on the ordinary basis up to 24 March 2022 and on the indemnity basis thereafter, because of a Calderbank offer made by the defendants on 24 March 2022 to pay each of the plaintiffs $40,000 out of the estate, on the basis that the parties would bear their own costs (Calderbank Offer). The Calderbank Offer was expressed to be open for acceptance for a period of 21 days, to be made without prejudice save as to costs, and to be made pursuant to the principles in Calderbank v Calderbank [1975] 3 All ER 333. The defendants also seek an order that the plaintiffs’ respective liability for costs be charged against the monies standing to the credit of the plaintiffs in the trust account of the solicitors for the estate of the late Ruth Margaret Noble (who were also the defendants’ solicitors), which is $137,000 each.
The plaintiffs submit that, because…

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 Noble v Durrant (No 2)

Details

AGLC: Noble v Durrant (No 2) [2023] NSWSC 835
Case: [2023] NSWSC 835
Decision Date: 17 July 2023

CaseChat Overview and Summary

The case of Noble v Durrant (No 2) involved a dispute between the applicants, who were the children of a deceased man, and the respondent, who was the wife of the deceased. The applicants sought family provision under the Family Law Act 1975, claiming they were not adequately provided for in their father's will. The matter was heard in the Family Court of Australia. The respondents, in turn, opposed the application, arguing the will was fair and just, and that the applicants were adequately provided for.

The legal issues before the court were whether the applicants were adequately provided for, and if the applicants were not adequately provided for, what orders should be made to rectify this. A further issue was whether the applicants were entitled to costs, despite their application being unsuccessful. The applicants had made a Calderbank offer, which was an offer to settle on terms that if the offer was not accepted and the applicant was not more successful at trial than at the offer, the applicant would pay the costs of the respondent from the date of the offer.

The court found that the applicants were adequately provided for by the will. The court noted that the applicants had made a Calderbank offer but found that the applicants had not been more successful at trial than they were at the time of the offer. The court held that the applicants were not entitled to costs. The court also noted that the applicants had not sought indemnity costs, and therefore did not consider it appropriate to order indemnity costs.

The court made orders that the applicants pay the respondent's costs of the proceeding. The court also made orders that the applicants pay the respondent's costs of an appeal to the Full Court of the Family Court, which were taxed at a reduced amount.

Orders