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Page v Page [No 2]

Page v Page [No 2]

Case [2016] NSWSC 1323 30 September 2016

Appeal

Costs

Jurisdiction

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Page v Page [No 2] [2016] NSWSC 1323
Hearing dates: 19 September 2016
Date of orders: 30 September 2016
Decision date: 30 September 2016
Jurisdiction: Equity
Before: Hallen J
Decision:
Orders that the Plaintiff pay the Defendant’s costs calculated on the ordinary basis of the proceedings. Insofar as the Defendant’s costs are not paid by the Plaintiff, her costs should be paid out of the estate of the deceased. Makes no order as to the Plaintiff’s costs of the proceedings.

Legislation Cited: Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Click here to enter text.
Cases Cited: Aljade and Malaysian Kuwaiti Investment Co SDN BHD (MKIC) v Oversea-Chinese Banking Corp Ltd (OCBC) [2004] VSC 351
Bates v Cooke (No 2) [2014] NSWSC 1322
Bates v Cooke [2015] NSWCA 278
Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343
Chapple v Wilcox [2014] NSWCA 392
Evans v Braddock (No 2) [2015] NSWSC 518
In the matter of Cheal Industries Pty Ltd - Fitzpatrick v Cheal [2012] NSWSC 932
In the matter of Employ (No 96) Pty Ltd (in liquidation) [2013] NSWSC 456
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Kazar (Liquidator) v Kargarian; In the Matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Leichhardt Municipal Council v Green [2004] NSWCA 341
Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141
Ohn v Walton (1995) 36 NSWLR 77
Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2001) 113 LGERA 439; [2001] NSWCA 137
Page v Page [2016] NSWSC 1218
Stewart v Atco Controls Pty Ltd (in liq) (No 2) (2014) 252 CLR 331; [2014] HCA 31
Stojanovski v Stojovski [2016] NSWSC 976
Walsh v Walsh (No 2) [2013] NSWSC 1281
Texts Cited: G E Dal Pont, Law of Costs (3rd ed 2013, LexisNexis) Click here to enter text.
Category: Costs
Parties: Mr Warren Page (Plaintiff)
Ms Patricia Page (Defendant)
Representation:
Counsel:
Mr K Morrissey (Plaintiff)
Mr P Bolster (Defendant)
Solicitors:
Turner Freeman (Plaintiff)
Frank Legal (Defendant)

File Number(s): 2015/56283

JUDGMENT

HIS HONOUR: In this matter, I delivered reasons for judgment on 6 September 2016, the medium neutral citation of which is Page v Page [2016] NSWSC 1218 (“the principal judgment”). Events and people are referred to in these reasons in the same way as they were in the principal judgment. These reasons should be read with the principal judgment.
In the principal judgment, I determined that the Summons should be dismissed because Warren was not an eligible person within the meaning of that term in s 57(1)(e) of the Act and, that even if I were wrong, and he was an eligible person, there were no factors warranting the making of his application.
At the request of the parties, I did not deal with the…

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 Page v Page [No 2]

Details

AGLC: Page v Page [No 2] [2016] NSWSC 1323
Case: [2016] NSWSC 1323
Decision Date: 30 September 2016

CaseChat Overview and Summary

The case of Page v Page [No 2] was heard in the Supreme Court of New South Wales. The plaintiff, Mr Warren Page, brought an application for a family provision order against the estate of his deceased brother. The defendant, Ms Patricia Page, as the legal personal representative of the deceased's estate, opposed the application. The court had to determine the legal issues concerning the costs of the proceedings, specifically whether the plaintiff should be ordered to pay the defendant's costs and, if so, upon what basis.

The court considered the principles governing costs orders, including the discretionary nature of such orders, the purpose of compensating the successful party, and the importance of context and facts of the litigation. The court also examined the relevance of offers of compromise and Calderbank offers in determining costs. The court noted that the defendant had made two offers, one in accordance with the Uniform Civil Procedure Rules and the other a Calderbank offer. The plaintiff did not respond to either offer and the proceedings were ultimately dismissed.

In deciding the matter, the court found that the terms of the defendant's offers were clear, precise, and a legitimate attempt to resolve the proceedings. The court also found that the plaintiff's conduct throughout the litigation, including his failure to respond to the defendant's offers, was unreasonable. The court further noted that the plaintiff had entered into a conditional costs agreement with his solicitors, which meant that he was not at risk of his own costs if he were unsuccessful. On the other hand, the defendant, as the legal personal representative of the deceased's estate, was responsible for her costs.

Taking all these factors into account, the court decided that the plaintiff should pay the defendant's costs, calculated on the ordinary basis, of the proceedings, including the costs of the application for costs. The court also ordered that, insofar as the defendant's costs were not paid by the plaintiff, those costs calculated on the indemnity basis should be paid out of the estate of the deceased. The court made no order as to the plaintiff's costs.

Orders