Noyce v Jeromel (No 2) - [2021] SASCA 111

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
NOYCE v JEROMEL (No 2)
[2021] SASCA 111
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Livesey and the Honourable Justice Blue)
14 October 2021
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT
The Court determined a separate issue in this action, namely that the first respondent did not, by reason of the lodgement at the Lands Titles Office of specified dealings on 19 May 2020, distribute a property at Royal Terrace Royal Park or a property at Arnold Street Royal Park within the meaning of subsection 8(5) of the Inheritance (Family Provision) Act 1972: Noyce v Jeromel [2021] SASCA 87.
The applicant seeks an order that her costs of the hearing and determination of the separate issue be paid by the second respondent. The second respondent contends that the costs should be reserved to the trial Judge or alternatively be the applicant’s costs in the cause or alternatively be paid out of the estate.
The applicant also seeks an order that her costs of the respondents’ appeal against an order by a Master granting an extension of time within which to commence the action be paid by the second respondent and an order that her costs of her application for an extension of time be paid as to 75 per cent by the second respondent.
Held by the Court:
1There is no reason why the costs of the separate issue should not follow the event (at [13]-[14]).
2The costs of the separate issue should be paid by the second respondent personally and not out of the estate (at [18]).
3The applicant’s costs of the appeal should be paid by the second respondent personally and not out of the estate (at [23]).
4The Master’s order reserving the costs of the application to extend time should not be disturbed (at [26]).

Inheritance (Family Provision) Act 1972 (SA) ss 8, 9; Supreme Court Act 1935 (SA) s 40(1), referred to.
Craker v Craker (No 3) [2019] SASC 13; Green v Ellul (No 2) [2018] SASCFC 105; Hall v Carney (No 2) [2012] SASCFC 105; In the Estate of Amuso (No 2) [2021] SASC 61; Pizimolas v Pizimolas (No 2) [2010] SASC 209; Public Trustee v Hall [1937] SASR 252; Public Trustee v Taylor (No 2) [2020] SASC 213; Roche v Roche (No 2) [2017] SASC 75, considered.

NOYCE v JEROMEL (No 2)
[2021] SASCA 111

THE COURT: On 2 September 2021, on referral by a single Judge, this Court determined a separate issue in this action, namely that the first respondent Paul Jeromel (as executor of the estate of Irene Johanne Jeromel) (the Executor) did not, by reason of the lodgement at the Lands Titles Office of specified dealings on 19 May 2020, distribute a property at Royal Terrace Royal Park or a property at Arnold Street Royal Park…

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 Noyce v Jeromel (No 2)

Details

AGLC: Noyce v Jeromel (No 2) [2021] SASCA 111
Case: [2021] SASCA 111
Decision Date: 14 October 2021

CaseChat Overview and Summary

In *Noyce v Jeromel (No 2)*, the dispute concerned the costs of a separate issue determined in favour of the applicant, Danuta, and the costs of an appeal. The Court was required to determine whether the general rule that costs follow the event should apply to the separate issue and the appeal, and whether those costs should be paid personally by the second respondent or out of the estate.

The Court applied the general principle that costs follow the event, finding no reason to depart from this rule in relation to the determination of the separate issue or the appeal. The Court reasoned that the second respondent's personal conduct warranted ordering that the costs be paid personally, rather than out of the estate. The Master's prior order reserving the costs of an application to extend time was also not disturbed.

The Court ordered that the second respondent pay the applicant's costs of the hearing and determination of the separate issue. Further, the second respondent was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

Held by the Court:

1 There is no reason why the costs of the separate issue should not follow the event (at [13]-[14]).

2 The costs of the separate issue should be paid by the second respondent personally and not out of the estate (at [18]).

3 The applicant’s costs of the appeal should be paid by the second respondent personally and not out of the estate (at [23]).

4 The Master’s order reserving the costs of the application to extend time should not be disturbed (at [26]).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no appeal against the Master’s costs order. The result of the determination of the separate issue in favour of Danuta affords no reason to reconsider or alter that costs order.Conclusion In case number 318 of 2020, we order that the second respondent pay the applicant’s costs of the hearing and determination of the separate issue. In case number 882 of 2021, we order that the second appellant pay the respondent’s costs of the appeal.

Ratio Decidendi

Legal Principle Established

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