OSMAN v Public Trustee

[2002] WASC 120

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   OSMAN -v- PUBLIC TRUSTEE & ORS [2002] WASC 120

CORAM:   MASTER BREDMEYER

HEARD:   16 MAY 2002

DELIVERED          :   16 MAY 2002

PUBLISHED           :  21 MAY 2002

FILE NO/S:   CIV 1312 of 2001

MATTER                :of the Inheritance (Family and Dependants Provision) Act 1972

AND

of the Estate of MARIJA OSMAN (DEC)

BETWEEN:   FAY OSMAN

Plaintiff

AND

PUBLIC TRUSTEE
First Defendant

JOHN OSMAN
Second Defendant

MARIA OSMAN
Third Defendant

Catchwords:

Inheritance action - Effect of O 24A offer on costs - Application to re-open argument

Legislation:

Rules of the Supreme Court, O 24A

Result:

Costs order affirmed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr C E Chenu

First Defendant             :     No Appearance

Second Defendant         :     Mr J H S Macdonald

Third Defendant           :     Mr J H S Macdonald

Solicitors:

Plaintiff:     Durack & Zilko

First Defendant             :     No Appearance

Second Defendant         :     James Macdonald

Third Defendant           :     James Macdonald

Case(s) referred to in judgment(s):

Hoad v Nationwide News Pty Ltd (1997) 37 IPR 407

Case(s) also cited:

Nil

1. MASTER BREDMEYER:  This case was heard over three days and I then reserved my decision for a week.  On 10 May 2002 I read out reasons for my decision and awarded the plaintiff $230,000.

2. Mr Macdonald, for the second and third defendants, then tendered the Second and Third Defendants' Chronology of Events re Settlement Proposals which tabulated a series of settlement offers and counter offers and annexed the correspondence. The most significant of those offers was an offer dated 27 June 2001 by the second and third defendants under O 24A of the Rules of the Supreme Court of $250,000.  I then heard argument on both sides as to the effect of the plaintiff's rejection of that offer on the question of costs.  Mr Chenu, for the plaintiff, addressed me on the law and also on the facts why it was reasonable for his client to reject the offer of $250,000 when she did.

3. I then ordered that the plaintiff's party and party costs up to 26 June 2001 were to be paid out of the estate. Thereafter there was to be no order as to the plaintiff's costs. I further ordered the plaintiff to pay three quarters of the second and third defendants' taxed costs on a party party basis from 26 June 2001. It will be seen that I applied O 24A and I gave some brief reasons for doing so which will be found in the transcript.

4. Mr Chenu wrote to the Court on 13 May 2001 asking to re‑open the hearing.  He said that he had failed to address me on 10 May 2002 on an important factual matter - the failure being due to inadvertence.  He has referred me to Hoad v Nationwide News Pty Ltd (1997) 37 IPR 407 at 409 per Anderson J as authority for the proposition that leave to re‑open in respect of a matter of law will not be given lightly when the issue sought to be re‑opened was fairly before the Court on the first occasion, but it may be appropriate to give it when the application arises from a genuine misunderstanding by which the Court has been deprived of the benefit of full submissions on an important point.

5. I propose to give leave to the plaintiff to re‑open the argument limited to this one point.  I note that the orders have not yet been extracted.  I give leave as an indulgence to the plaintiff.  I do not think that I am required to do.  However, if I made a mistake, re‑opening would allow it to be corrected and would obviate the necessity and expense of an appeal.

6. Mr Chenu's new argument is found at par 14 to par 18 of his written outline of submissions of 15 May 2002 and addressed to me orally.  The argument in essence is as follows:

   1.The plaintiff's financial circumstances were worse in June and July 2001 when she rejected the offer of $250,000 compared to at the time of my order.  In mid 2001 she had not yet won the $55,000 in lotto which she won on 17 or 18 August 2001.

   2.Because of her poor financial circumstances at that time, she did not act unreasonably in rejecting that offer.

   3.In giving my reasons I said that I took into account the $55,000 lotto win.

   4.I was therefore wrong in saying, in effect, that she acted unreasonably in rejecting the offer in mid‑2001 and to punish her by the costs order which I made.

7. I had to consider the $55,000 lotto win as it was a significant windfall to the plaintiff between the date of death and the date of my order.  However, it had no impact on my final award of $230,000.  I say that because the $55,000 was not intact as at 10 May 2002.  It was not there in a bank account or in some other assets such as real estate.  I consider that the assets the plaintiff had both at the date of death and at the date of my order were negligible in considering what was an appropriate award to her.  As at the date of my orders, she had an old car which she had purchased for $3,300 and she spent $4,000 on repairing it.  The cost of those repairs does not necessarily enhance the value of the car much, if at all.  She had a second hand computer.  She had a large screen television.  She had $9,500 in the bank which came from her lotto win.  She had about $13,000 in superannuation.  I considered all of those as negligible assets when considering the appropriate award to be made to her.

8. Weighing up all the relevant factors, which I have done at some length in the reasons, but, in summary, weighing up the needs and deserts of the plaintiffs against the needs and deserts of John and Mary I thought the plaintiff entitled to one‑seventh of the estate as at the date of death and John and Mary each entitled to three‑sevenths.  I remained of that view as at the date of the order.  $230,000 was fixed as one‑seventh of the value of the estate of just over $1.6 million as at the date of my order.  I did not reduce the award I would otherwise have given the plaintiff because of the lotto win.

9. I remain of the view that the plaintiff was unreasonable in rejecting the offer when she did.

10. My costs orders stand.