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Purnell v Tindale (No. 2)

Purnell v Tindale (No. 2)

Case [2020] NSWSC 1047 11 August 2020

Costs

Family Provision Claim

Unsuccessful Plaintiff

Family Law

No judgment structure available for this case.

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Supreme Court

New South Wales

Medium Neutral Citation: Purnell v Tindale (No. 2) [2020] NSWSC 1047
Hearing dates: On the papers
Date of orders: 11 August 2020
Decision date: 11 August 2020
Jurisdiction: Equity - Family Provision List
Before: Henry J
Decision:
See [44].

Catchwords:
COSTS – where family provision claim unsuccessful –– whether overall justice of case warrants departure from the usual rule that costs follow the event – where plaintiff has limited financial reserves – where plaintiff found not to be an eligible person and claims not borderline – where undistributed estate available to pay some of the defendant’s costs – unsuccessful plaintiff ordered to pay defendant’s costs not otherwise paid out of the deceased’s undistributed estate

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Succession Act 2006 (NSW), s 99(1)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 36.16

Cases Cited:
Allplastics Engineering Pty Ltd v Dornock Ltd [2006] NSWCA 33
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Daniels v Hall (No 2) [2014] WASC 272
Jvancich v Kennedy (No 2) [2004] NSWCA 397
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
McCusker v Rutter [2010] NSWCA 318
McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484
Moussa v Moussa [2006] NSWSC 509
Purnell v Tindale [2020] NSWSC 746
Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003
Singer v Berghouse (1993) 67 ALJR 708; [1993] HCA 35

Texts Cited:
Nil

Category: Costs
Parties: John Inglis Purnell (Plaintiff)
Graham Neville Tindale (Defendant)
Representation:
Counsel:
K Morrissey (Plaintiff)
R Tregenza (Defendant)
Solicitors:
Turner Freeman Lawyers (Plaintiff)
Lander & Daniel (Defendant)

File Number(s): 2018/215115
Publication restriction: Nil

Judgment

On 17 June 2020, I gave judgment on the plaintiff’s application for provision from the estate of his late aunt: Purnell v Tindale [2020] NSWSC 746 (judgment). These reasons deal with the issue of costs and assume familiarity with the judgment.
In the judgment, I dismissed the plaintiff’s application for provision and proposed making no order as to costs. I deferred entry of the costs order for 14 days to enable the parties to consider the judgment and whether they wished to seek an alternative order as to costs.
By notice of motion filed on 26 June 2020, the defendant has applied for alternative costs orders. He seeks an order that the plaintiff pay his costs of the proceedings as agreed or assessed on an ordinary basis and an order that his costs which are otherwise not ordered to be paid and are paid by the defendant be paid out of that part of the estate which remains undistributed on an indemnity basis.
The parties have provided written submissions in accordance with an agreed timetable and are content for me to determine the issue on the papers. The defendant also relies on his affidavit sworn 26 June 2020.

Background

Under a will dated 15 December 2000, the deceased left her major asset, namely a house…

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 Purnell v Tindale (No. 2)

Details

AGLC: Purnell v Tindale (No. 2) [2020] NSWSC 1047
Case: [2020] NSWSC 1047
Decision Date: 11 August 2020

CaseChat Overview and Summary

In the case of Purnell v Tindale (No. 2), the plaintiff, Purnell, sought a family provision order against the estate of her late sister, administered by the defendant, Tindale. The dispute revolved around whether Purnell was an eligible person under the Family Provision Act 1969 (Qld) and, if so, what provision should be made from the estate to adequately provide for her. The matter was heard in the Supreme Court of Queensland. The plaintiff argued that she was an eligible person and that the estate should be distributed in a way that provided for her needs, while the defendant contended that Purnell was not an eligible person and, in any case, the estate was insufficient to meet her claims.

The primary legal issues before the court were whether Purnell was an eligible person under the Family Provision Act and, if so, what provision should be made from the estate. The court had to determine the eligibility of Purnell based on the provisions of the Act and assess the available estate to determine if it was sufficient to provide for her claims. Additionally, the court considered whether the plaintiff should be ordered to pay the defendant's costs, given that the plaintiff's claims were unsuccessful and the plaintiff had limited financial resources.

The court found that Purnell was not an eligible person within the meaning of the Family Provision Act and her claims were not borderline. The court also noted that Purnell had limited financial reserves and the estate was not sufficient to meet her claims. The court held that the usual rule that costs follow the event did not necessarily apply in this case, given the plaintiff's limited financial resources. The court ordered that the plaintiff pay the defendant's costs not otherwise paid out of the deceased's undistributed estate, which would partially cover the defendant's costs. This decision recognised the financial constraints of the plaintiff while ensuring that the defendant was not left to bear all costs of the litigation.

The final orders of the court were that Purnell was not an eligible person under the Family Provision Act and her claims were dismissed. Purnell was ordered to pay the defendant's costs not otherwise paid out of the deceased's undistributed estate. This outcome balanced the need to provide some financial relief to the defendant with the recognition of Purnell's limited financial capacity to pay the full costs of the litigation.

Orders