Price v Ikin - [2004] NSWSC 706

CITATION: Price v Ikin [2004] NSWSC 706

HEARING DATE(S): 28/7/2004

JUDGMENT DATE:
27 August 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION: Proceedings dismissed with no order as to costs.

CATCHWORDS: Procedure - costs. Application under Family Provision Act 1982. Plaintiff dies before hearing. Consideration of whether in this case the Court can make an order for costs. Held no power to make an order for costs.

CASES CITED: McEvoy v Public Trustee (1989) 16 NSWLR 92
Stead v Foster (Unreported, NSWSC, 4 September 1998)
Kalejs v Minister For Justice & Customs (2001) 111 FCR 442
Phung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 821
Ali v Hartley Poynton (No 2) [2002] VSC 245
In the Marriage of Sims (1980) 50 FLR 286
Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 at 201
Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622
One Tel Ltd v Deputy Commissioner of Taxation (2000) FCA 270

PARTIES :
Robert John Price v David William Ikin

FILE NUMBER(S): SC 4287 of 2002

COUNSEL: M. Willmott SC for plaintiff
B. Sharpe for defendant

SOLICITORS: Lees & Givney for plaintiff
Winston Readford for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Friday 27 August 2004

4287 of 2002 ROBERT JOHN PRICE v DAVID WILLIAM IKIN AND ORS

JUDGMENT

1 MASTER: This is the hearing of an application for costs on behalf of the plaintiff. The substantive matter concerns an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late Deidre Robin Price who died on 14 November 2001. The plaintiff who had gone through a marriage ceremony with the deceased in 1991 survived the deceased. Walter Joseph Goosakoff, the second defendant, who was in fact the husband of the deceased, she having married him on 8 November 1972, also survived the deceased.

2 The application is made because the plaintiff in the proceedings died on 9 May 2004. The plaintiff, by his legal representatives in these proceedings, accepts that because of the decision in McEvoy v Public Trustee (1989) 16 NSWLR 92 the late plaintiff’s cause of action does not survive his death and the proceedings abate.

Assets in the estate

3 It appears that the plaintiff’s estate is insolvent with the only assets being savings with the Horizon Credit Union in the sum of $11.00 and a van that was repossessed by the hire purchase company following his death. For ten years the plaintiff and the deceased resided in the property 352 Pittwater Road, North Ryde, New South Wales. It turns out that that property had been registered in the name of the deceased and her husband Walter Goosakoff as joint tenants and that it passed to him by survivorship upon her death.

4 The property is valued at $530,000.00. It is apparent that there are a number of debts in the estate of 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 Price v Ikin

Details

AGLC: Price v Ikin [2004] NSWSC 706
Case: [2004] NSWSC 706
Decision Date: 27 August 2004

CaseChat Overview and Summary

Price v Ikin involved a legal dispute where the plaintiff, Price, sought a determination under the Family Provision Act 1982. The matter was initiated by Price against Ikin, likely seeking a provision from Ikin's estate. Unfortunately, Price passed away before the hearing, leaving the matter unresolved in terms of the original claim. The court was tasked with determining whether it had the authority to make an order for costs in light of Price's death.

The primary legal issue the court had to address was whether it had the jurisdiction to order costs in the circumstances where the plaintiff had died before the hearing. This involved interpreting the relevant legislative provisions and case law to ascertain whether such an order was permissible or appropriate under the Family Provision Act 1982. The court needed to balance the statutory objectives of the Act with the procedural fairness to both parties.

The court ultimately concluded that it did not have the power to make an order for costs in these circumstances. The reasoning was based on the principle that the court's authority to order costs is contingent on the continuation of the proceedings by the plaintiff. With Price having passed away, the court found that it could not exercise this power without undermining the statutory intent and procedural fairness. This decision was consistent with established legal precedents that underscore the importance of the plaintiff's active involvement in the litigation process.

No specific final orders were made regarding the costs, as the court determined it lacked the jurisdiction to do so. The court's decision effectively left the issue of costs unresolved, reflecting the unique procedural challenges presented by the plaintiff's death before the hearing.

Orders