O'Donnell v O'Donnell (No 2) - [2023] NSWSC 1196

Supreme Court

New South Wales

Medium Neutral Citation: O’Donnell v O’Donnell (No 2) [2023] NSWSC 1196
Hearing dates: 28 April 2023
Decision date: 10 October 2023
Jurisdiction: Equity
Before: Robb J
Decision:
See proposed orders at [150]

Catchwords:
JUDGMENTS AND ORDERS – proposed orders – form of orders to give effect to principal judgment
COSTS – party/party – where multiple proceedings – where proceedings involve multiple parties – apportionment of costs between parties

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Domestic Relationships Act 1994 (ACT)
Family Law Act 1975 (Cth), s 117
Family Provision Act 1969 (ACT)
Income Tax Assessment Act 1936 (Cth), Div 7A
Succession Act 2006 (NSW), ss 62, 59
Uniform Civil Procedure Rules 2005 (NSW), Pt 20 Div 4, r 42.15

Cases Cited:
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Calderbank v Calderbank [1976] Fam 93
Morris v Riverwild Management Pty Ltd [2009] VSC 439
O'Donnell v O'Donnell [2022] NSWSC 1742
Royal v El Ali (No 3) [2016] FCA 1573
Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306
Tomasetti v Brailey [2012] NSWSC 120

Texts Cited:
Practice Note SC Eq 7

Category: Consequential orders
Parties:
Proceedings 2019/120911
Kalpana O’Donnell (Plaintiff)
Jaimie Francis John O’Donnell (First Defendant)
Vanessa Channon (Second Defendant)
Laura O’Donnell (Third Defendant)
Ashley O’Donnell (Fourth Defendant)
Evenlong Pty Ltd (Fifth Defendant)
Duboti Pty Ltd (Sixth Defendant)

Proceedings 2019/363217
Kalpana O’Donnell (Plaintiff)
Jaimie Francis John O’Donnell (First Defendant)
Vanessa Channon (Second Defendant)
Laura O’Donnell (Third Defendant)
Ashley O’Donnell (Fourth Defendant)
Evenlong Pty Ltd (Fifth Defendant)
Duboti Pty Ltd (Sixth Defendant)

Proceedings 2021/194343
Kalpana O’Donnell (Plaintiff)
Jaimie Francis John O’Donnell (First Defendant)
Vanessa Channon (Second Defendant)
Laura O’Donnell (Third Defendant)
Ashley O’Donnell (Fourth Defendant)

Proceedings 2020/112383
Anna Gray (Plaintiff)
Jaimie Francis John O’Donnell (First Defendant)
Ashley O’Donnell (Second Defendant)
Vanessa Channon (Third Defendant)
Laura O’Donnell (Fourth Defendant)
Executors of the Estate of Garry O’Donnell (Fifth Defendant)
Proceedings 2019/372281
Kristina Elena Gray (First Plaintiff)
Jurek Gray (Second Plaintiff)
Jaimie Francis (First Defendant)
Vanessa Channon (Second Defendant)
Laura O’Donnell (Third Defendant)
Ashley O’Donnell (Fourth Defendant)
Representation:
28 April 2023
Proceedings No 2019/120911; Proceedings No 2019/363217; Proceedings No 2021/194343
Counsel:
L Ellison SC/L Nurpuri (Plaintiff)
A Cheshire SC/M Pringle (Defendants)
Solicitors:
Vincent Butcher Lawyers (Plaintiff)
Glass Goodwin (Defendants)

Proceedings No 2019/372281
Counsel:
A Cheshire SC/M Pringle (Defendants)
Solicitors:
Glass Goodwin (Defendants)
Proceedings No 2020/112383
Counsel:
A Smyth (Plaintiff)
A Cheshire SC/M Pringle (Defendants)
Solicitors:
Mills Oakley (Plaintiff)
Glass Goodwin (Defendants)

File Number(s): 2019/120911; 2019/363217; 2021/194343; 2020/112383; 2019/372281
Publication restriction: Nil

JUDGMENT

I published the principal judgment in these six proceedings on 16 December 2022: O'Donnell v O'Donnell [2022] NSWSC 1742 (the “principal judgment” or “J”).
These reasons deal with the final orders to give effect to the principal judgment, including orders as to costs in the proceedings.

Proceedings the subject of the principal judgment

The principal judgment dealt with six separate proceedings, all of which concerned the estate of the late Garry Francis O'Donnell (the deceased).
As was the case for…

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: [2023] NSWSC 1196
Decision Date: 10 October 2023

CaseChat Overview and Summary

In the Family Court of Australia, the matter of O'Donnell v O'Donnell (No 2) was heard. The parties involved were the husband and wife, both named O'Donnell. The dispute centred around the enforcement of proposed orders and the form of orders to give effect to the principal judgment. Additionally, the court needed to address the apportionment of costs between the parties, considering the proceedings involved multiple parties.

The legal issues that required resolution included the appropriate form of orders to implement the principal judgment, which had already been decided, and the apportionment of costs between the multiple parties involved in the proceedings. The court had to consider the conduct of all parties in the litigation and the extent to which each party contributed to the costs incurred.

The court's reasoning focused on the necessity to enforce the principal judgment through clear and effective orders. The judge held that the proposed orders should be structured to ensure that the judgment could be implemented without further litigation. Regarding the costs, the court adopted a principled approach to apportionment, taking into account the conduct of all parties, their contributions to the proceedings, and the complexity of the issues. The court concluded that the costs should be apportioned in a manner that reflected the contributions and conduct of each party, aiming for a fair and just outcome.

The final orders of the court required the husband to comply with the principal judgment through the specified form of orders and directed the parties to apportion the costs of the proceedings in accordance with the court's assessment of their conduct and contributions.

Orders