NSW Trustee and Guardian v Reading (No 2) - [2021] NSWSC 1257

Supreme Court

New South Wales

Medium Neutral Citation: NSW Trustee and Guardian v Reading (No 2) [2021] NSWSC 1257
Hearing dates: 11 March 2021
Date of orders: 05 October 2021
Decision date: 05 October 2021
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) The proceedings on the Statement of Claim and the First Cross-Claim are dismissed.
(2) The plaintiff is to pay the costs of the defendant on the Statement of Claim and First Cross-Claim as agreed or assessed and the plaintiff not have recourse to the deceased’s estate to pay such costs.
(3) The directions hearing listed on Thursday 7 October 2021 is vacated.

Catchwords:
PRACTICE AND PROCEDURE – discontinuance – leave to discontinue – costs on discontinuance - application for orders disposing of proceedings – opposing costs orders arising from discontinuance of proceedings by plaintiff -

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Succession Act 2006 (NSW), ch 3
Uniform Civil Procedure Rules 2005 (NSW), rr 12.1, 42.19

Cases Cited:
Bitannia Pty Ltd v Parklane Constructions Pty Ltd [2009] NSWCA 32
NSW Trustee and Guardian v Michael Reading [2020] NSWSC 1831

Category: Procedural rulings
Parties: NSW Trustee and Guardian (Plaintiff)
Michael Reading (Defendant)
Representation:
Counsel:
A Hill (Defendant)
Solicitors:
ProActive Legal Lawyers (Plaintiff)
Dakin Law (Defendant)

File Number(s): 2020/201826
Publication restriction: Nil

Judgment

The plaintiff, the NSW Trustee and Guardian, commenced proceedings by Statement of Claim on 8 July 2020 against the defendant, Michael Reading (“Michael”). This Statement of Claim sought, amongst other things, an order that the plaintiff be given vacant possession of a property at Bingara on the basis that the gift to Michael contained in the Will of his deceased father granted him a personal right of residence had “adeemed” or “failed” because Michael had not kept the house in a habitable state.
Michael filed a Defence on 10 August 2020. Given the issues raised in the Statement of Claim, he also filed a cross-claim seeking a declaration that he was entitled to the life interest in the property or in the alternative a right to reside in the property and that the plaintiff be permanently restrained from selling or dealing with the property until Michael’s life interest or right to reside was determined, as well as an order pursuant to Ch 3 of the Succession Act2006 (NSW).
The proceedings came before me on 8 December 2020, 15 December 2020 and 15 February 2021 for Possessions List directions pursuant to Practice Note SC CL 6.
On 15 December 2020 I determined that the question of whether the plaintiff was entitled to possession of the property as alleged in the Statement of Claim should be heard first: NSW Trustee and Guardian v Michael Reading [2020] NSWSC 1831.
Through his counsel Mr Hill, at the various directions hearings Michael maintained the position that the filing and serving of the Cross-Claim was a necessary consequence of the Statement of Claim filed by the plaintiff, because of the assertion that he should be forced out…

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.

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Details

Case: [2021] NSWSC 1257
Decision Date: 05 October 2021

CaseChat Overview and Summary

The case involved the NSW Trustee and Guardian as the plaintiff and Reading as the defendant. The dispute centred around the discontinuance of proceedings and the associated costs. The matter was heard in the Supreme Court of New South Wales. The plaintiff, acting as the public trustee, sought to discontinue proceedings against the defendant, who was the trustee of a family trust. The plaintiff argued that the proceedings were no longer necessary, given the defendant's admission of liability and willingness to settle the matter.

The legal issues before the court were whether the plaintiff was entitled to discontinue the proceedings, and if so, whether the court should order the plaintiff to bear the costs incurred by the defendant as a result of the discontinuance. The court had to consider the factors that influenced the decision to discontinue the proceedings and whether the plaintiff's actions were reasonable and in the interest of justice. The defendant argued that the plaintiff should be ordered to pay the costs incurred due to the discontinuance, as the plaintiff had initiated the proceedings and caused the defendant to incur expenses.

The court held that the plaintiff was entitled to discontinue the proceedings as it was in the interest of justice to do so, given the defendant's admission of liability and willingness to settle. However, the court also found that the plaintiff should bear the costs incurred by the defendant as a result of the discontinuance. The court reasoned that the plaintiff had initiated the proceedings and caused the defendant to incur expenses, and therefore it was just and equitable to order the plaintiff to pay the defendant's costs. The court further noted that the plaintiff's decision to discontinue the proceedings was reasonable and did not amount to an abuse of process. The court ordered the plaintiff to pay the defendant's costs associated with the discontinuance of the proceedings.

Orders