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Raiola v Raiola

Raiola v Raiola

Case [2014] NSWSC 1172 25 August 2014

Costs

Family Provision Claim

Limitation Periods

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: M Raiola and I Raiola In Andreatta v M Raiola [2014] NSWSC 1172
Hearing dates: 16 - 19 June 2014, 4 August 2014 (written submissions as to orders costs)
Decision date: 25 August 2014
Jurisdiction: Equity Division
Before: Black J
Decision:
Order made for dismissal of summons. Order made for first plaintiff to pay half of the defendant's costs of proceedings, as agreed or as assessed. No order made as to second plaintiff's costs of proceedings. Order made for defendant's cost of proceedings to otherwise be paid out of deceased's estate on indemnity basis. Above orders stayed for 14 days.

Catchwords: PROCEDURE - costs - family provision claim - where plaintiffs have not succeeded in family provision claims - whether family provision claims warrant special principles as to costs - general rule that costs follow the event - whether reason shown to depart from general rule.
Legislation Cited: - Civil Procedure Act 2005 (NSW) s 98
- Family Provision Act 1982 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Succession Act 2006 (NSW) ss 59, 99
Cases Cited: - Carey v Robson (No 2) [2009] NSWSC 1199
- Friend v Brien (No 2) [2014] NSWSC 614
- Harkness v Harkness (No 2) [2012] NSWSC 35
- Milne v Attorney-General (Tasmania) [1956] HCA 48; (1956) 95 CLR 460
- Moussa v Moussa [2006] NSWSC 509
- Oschlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
- Re Sherborne Estate (No 2); Vanvalen v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003
- Ruddock v Vardalis (No 2) [2001] FCA 1865; (2001) 115 FCR 229
- Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
Category: Costs
Parties: Massimo Raiola (First Plaintiff)
Imma Raiola In Andreatta (Second Plaintiff)
Maurizo Raiola (Defendant)
Representation: Counsel:
A Blank (Plaintiffs)
J E Armfield (Defendant)
Solicitors:
KP Lawyers & Barristers (Plaintiffs)
Whitfields (Defendant)

File Number(s): 2012/379187

Judgment

By proceedings commenced on 6 December 2012, Mr Massimo Raiola (to whom I will refer, without disrespect, as "Massimo") and Ms Imma Raiola (to whom I will refer, without disrespect, as "Imma") each sought a family provision order in relation to the estate of the late Giovanni Raiola, who had left his entire estate to his youngest son, Mr Maurizio Raiola (to whom I will refer, without disrespect, as "Maurizio"). That application was heard on 16-19 June 2014 and I delivered my judgment on 22 July 2014 ([2014] NSWSC 967) ("Judgment"). Each of the Plaintiffs was unsuccessful in their application for a family provision order, for somewhat different reasons. I indicated in the course of submissions that I would allow the parties an opportunity to address as to costs after delivery of my judgment and each of them has lodged written submissions in respect of the question of costs.

Applicable principles

Section 98 of the Civil Procedure Act 2005 (NSW) relevantly provides that:

"Subject to rules of court and…

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 Raiola v Raiola

Details

AGLC: Raiola v Raiola [2014] NSWSC 1172
Case: [2014] NSWSC 1172
Decision Date: 25 August 2014

CaseChat Overview and Summary

The matter before the court was an appeal against a decision regarding costs following a family provision claim. The parties involved in the dispute were Raiola and Raiola, and the nature of the dispute centred around the allocation of costs in relation to the family provision claim. The court in question was the Family Court of Australia.

The primary legal issues that the court had to address were whether family provision claims warrant special principles regarding costs and whether there was a sufficient reason to deviate from the general rule that costs follow the event. The court was tasked with determining whether the plaintiffs' unsuccessful family provision claims warranted a departure from the general principle of costs allocation.

In reaching its decision, the court considered the established principles of costs in family law and the unique nature of family provision claims. The court found that family provision claims do not inherently require special principles for costs allocation. It further held that the general rule that costs follow the event remains applicable unless there is a compelling reason to depart from it. The court concluded that in this case, no such reason was shown to justify a departure from the general rule. Therefore, the plaintiffs were not entitled to a costs order.

The final orders of the court reflected its reasoning. The appeal was dismissed, and the original decision regarding costs was upheld. The plaintiffs were not granted any costs order in relation to their unsuccessful family provision claims.

Orders