Pateman v Pateman - [2017] NSWSC 788

Supreme Court

New South Wales

Medium Neutral Citation: Pateman v Pateman [2017] NSWSC 788
Hearing dates: Written Submissions
Date of orders: 19 June 2017
Decision date: 19 June 2017
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) The defendant shall pay the plaintiff’s costs of and incidental to the proceedings on an indemnity basis;
(2) Otherwise, proceedings dismissed.

Catchwords: COSTS – ordinary rule that costs follow the event – costs not punishment or reward but compensation – mediation and agreement on Estate interest issues – defendant acts otherwise than in accordance with agreement reached – no defence to possession reasonably available – defendant occupies premises for first time after successful mediation – unjust for other beneficiaries’ interests in Estate to be reduced – indemnity costs ordered.
Legislation Cited: Civil Procedure Act 2005, s 56(3)
Category: Costs
Parties: Noel Pateman (Plaintiff)
Maree Ann Pateman (Defendant)
Representation: Solicitors:
Conroy Stewart Spagnolo (Plaintiff)
A Koroi-Lawedrau (Defendant)

File Number(s): 2016/190722

Judgment

On 25 August 2016 the Court issued orders, in part, granting judgment to the plaintiff for possession of land, a certain number of other ancillary orders and, subject to certain valuation and mediation proposals, granting leave to execute a writ of possession not before six weeks from the date of judgment. Ex tempore reasons issued as to the reasons for judgment.
In short, the controversy between the parties arises from a falling out between two beneficiaries of an Estate. Probate had been granted. The defendant, without consent or approval of the executor of the Estate, moved into premises which were the subject of disposition under the Will.
The defendant submitted, albeit without evidence, that she wanted to purchase the property. The matter was referred for pro bono legal assistance for the defendant and for mediation before the Registrar.
Earlier mediation had resolved of the issues, if any, in the administration of the Estate, but the mediation ordered by the Court on 25 August 2016 did not resolve the possession issues and the defendant did not seek, or have the resources, to purchase the property in question.
The property was sold under the powers available to the plaintiff.
I gave leave to the parties to deal with costs on the papers. It being obvious that it was inappropriate for the Court to add to the costs of litigation in an Estate of this size and given the nature of the issues involved.
The plaintiff has filed a submission (including a chronology). The chronology is not substantially in dispute. Somewhat reluctantly, it seems, the plaintiff has had little or no alternative but to pursue the claim for possession in order to implement the agreement at the mediation on the succession issues.
The proceedings have been run most appropriately and as efficiently and cheaply as is possible in the circumstances.
The defendant sought to file a Defence, out of time, which draft disclosed no viable or reasonable defence to the proceedings.
Submissions were filed on the question of costs by the defendant. It is an accurate…

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 Pateman v Pateman

Details

AGLC: Pateman v Pateman [2017] NSWSC 788
Case: [2017] NSWSC 788
Decision Date: 19 June 2017

CaseChat Overview and Summary

The matter of Pateman v Pateman came before the court, with the dispute focusing on the costs associated with the proceedings. The case involved the defendant's conduct post-mediation, where an agreement had been reached concerning the interests in the Estate. The court was tasked with determining whether the defendant's actions warranted an order for indemnity costs against him.

The central legal issue was whether the ordinary rule that costs follow the event should be departed from due to the defendant's conduct. The court considered whether the defendant had a defence to possession that was reasonably available and whether his actions post-mediation were in line with the agreed terms. The court also examined the implications of the defendant's conduct on the interests of other beneficiaries in the Estate.

In its reasoning, the court noted that the primary purpose of costs is to ensure compensation rather than punishment or reward. It held that the defendant's conduct post-mediation, which involved occupying the premises for the first time and acting contrary to the agreed terms, was unjust. Given that no defence to possession was reasonably available to the defendant, the court found it appropriate to order indemnity costs. The court determined that it was unjust for the other beneficiaries' interests in the Estate to be reduced due to the defendant's actions.

The final orders of the court included the awarding of indemnity costs to the plaintiff, reflecting the defendant's failure to adhere to the mediation agreement and his subsequent conduct that adversely affected the other beneficiaries.

Orders