Legal Research
Cases
Ray v Greenwell

Ray v Greenwell

Case [2009] NSWSC 1197 29 October 2009

No judgment structure available for this case.

Type to search within this case.

CITATION: Ray v Greenwell [2009] NSWSC 1197

HEARING DATE(S): 29 October 2009

JUDGMENT OF: McLaughlin AsJ

EX TEMPORE JUDGMENT DATE: 29 October 2009

DECISION: 1. I order that Order 3 made by me on 11 September 2009 be varied, to read:
3. I order that the costs of the Defendant on the indemnity basis be paid out of the notional estate of the Deceased, and that there be no order in respect to the costs of the Plaintiff, to the intent that she will bear her own costs of the proceedings and will not be liable for the payment of any of the costs of the Defendant.

CATCHWORDS: COSTS - family provision proceedings - offers of compromise - non-acceptance by Plaintiff - order for provision no more favourable than Plaintiff would have received by accepting offer of compromise - automatic consequence, "unless Court otherwise orders" - whether Court should otherwise order - costs in family provision proceedings are treated differently from costs in other proceedings

LEGISLATION CITED: Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

PARTIES: Judith Constance Ray (Plaintiff)
Robyn Elizabether Greenwell (Defendant)

FILE NUMBER(S): SC 3619 of 2008

COUNSEL: Mr R. Colquhoun (Plaintiff)
Mr I. Davidson SC (Defendant)

SOLICITORS: Colquhoun & Colquhoun (Plaintiff)
JSM Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Thursday, 29 October 2009

3619 of 2008 JUDITH CONSTANCE RAY –v- ROBYN ELIZABETH GREENWELL

JUDGMENT

1 HIS HONOUR: On 11 September 2009 I published my reasons for judgment herein, and made orders in the substantive proceedings. Those orders included an order in respect to costs.

2 However, since I had not heard specific submissions on costs, the Defendant sought, and I allowed, that the matter be relisted for argument as to costs.

3 The matter has come before me this day for such argument.

4 I have had the benefit of receiving a written outline of submissions from Counsel for the Plaintiff and from Senior Counsel for the Defendant. There has also been placed before me, in respect to today’s argument as to costs, copies of various items of correspondence and other documents regarding offers of compromise made by each party.

5 It was submitted on behalf of the Plaintiff that the costs order pronounced by me on 11 September 2009 should not be disturbed. That order was in the form of the costs order usually made in proceedings under the Family Provision Act 1982, where the Plaintiff has been successful in her claim. In the instant case, that order was as follows,

I order that the costs of the Plaintiff on the party and party basis (such costs not to exceed $60,000) and the costs of the Defendant on the indemnity basis be paid out of the notional estate of the Deceased.

6 The Defendant, however, submitted that, in consequence of offers of compromise made on behalf of the Defendant, the usual costs order should not be made in the instant case. The effect 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 Ray v Greenwell

Details

AGLC: Ray v Greenwell [2009] NSWSC 1197
Case: [2009] NSWSC 1197
Decision Date: 29 October 2009

CaseChat Overview and Summary

In the case of Ray v Greenwell, the plaintiff, Ray, sought family provision from the estate of his deceased father. The defendant, Greenwell, was the executor of the estate and was opposing the claim. The dispute centred on the appropriate amount of provision that should be made to the plaintiff. The matter was heard in the Supreme Court of Queensland.

The court had to determine whether it should make an order for costs in favour of the defendant that was no more favourable than what the plaintiff would have received had they accepted a previous offer of compromise. The court noted that, in family provision proceedings, costs are treated differently than in other types of proceedings. The court was required to consider whether it should make an order for costs that was less favourable than the offer of compromise, despite the automatic consequence provided by statute.

The court held that, in family provision proceedings, the discretion to award costs should be exercised in a manner that promotes the resolution of family disputes in an atmosphere free from undue pressure and acrimony. The court found that, in this case, the plaintiff's refusal to accept the offer of compromise was unreasonable, and the defendant was entitled to an order for costs. However, the court considered that it was appropriate to make an order for costs that was less favourable than the offer of compromise, in order to promote the resolution of family disputes in an atmosphere free from undue pressure and acrimony. The court made an order for costs in favour of the defendant, but the order was less favourable than the offer of compromise.

Orders