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Re Williams; Smith v Thwaites (No 2)

Re Williams; Smith v Thwaites (No 2)

Case [2017] VSC 771 19 December 2017

Costs

Limitation Periods

Abuse of Process

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2015 03820

IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic)

-and-

IN THE MATTER of the Will of MARGARET MARY WILLIAMS, deceased

ELIZABETH RUTH SMITH	Plaintiff
v
ALAN KEITH THWAITES (Executor of the Will and Trustee of the Estate of MARGARET MARY WILLIAMS deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	19 December 2017
CASE MAY BE CITED AS:	Re Williams; Smith v Thwaites (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 771

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COSTS — Family provision claim by plaintiff — Where plaintiff awarded further provision that was marginally less than defendant’s offer of compromise — Supreme Court (General Civil Procedure) Rules 2015, r 26.08(3) — Where effect of r 26.08(3) operates harshly on both plaintiff and defendant — Whether plaintiff’s costs are reasonable and proportionate to the issue in dispute — Content of overarching obligations — Where investigation of plaintiff’s costs necessary —Civil Procedure Act 2010, ss 24, 29.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S P Newton	McCarthy Partners
For the Defendant	Mr S E Marantelli	Meerkin & Apel

HER HONOUR:

Introduction

The plaintiff made application for further provision from the estate of her step mother, Margaret Mary Williams deceased. She was awarded further provision of $100,000.[1] Pursuant to the deceased’s will, the plaintiff received a one quarter share of the residue of the estate. For the purposes of the trial, this was assessed at $38,756. As a result of the judgment, the plaintiff receives $138,756 exclusive of costs.[2]
[1]Re Williams; Smith v Thwaites [2017] VSC 365 (23 June 2017).
[2]Ibid [69]–[70].

The parties were unable to agree on the question of who should pay the plaintiff’s costs of the proceeding.

The defendant seeks an order that the plaintiff pay the defendant’s costs in accordance with r 26.08(3) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) by reason of his two offers of compromise made to the plaintiff on 15 December 2015 and 3 February 2016 respectively.

Rule 26.08(3) provides that where an offer of compromise is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains a judgment on the claim that is not more favourable to the plaintiff than the terms of the offer, then unless the Court otherwise orders:

(a) the plaintiff shall be entitled to an order against the defendant for the plaintiff's costs in respect of the claim before 11 am on the second business day after the offer was served, taxed on the ordinarily applicable basis; and

(b) the defendant shall be entitled to an order against the plaintiff for the defendant's costs in respect of the claim thereafter taxed on the ordinarily applicable basis.

The plaintiff seeks an order that her costs of and incidental to the proceeding be paid from the estate on…

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 Re Williams; Smith v Thwaites (No 2)

Details

AGLC: Re Williams; Smith v Thwaites (No 2) [2017] VSC 771
Case: [2017] VSC 771
Decision Date: 19 December 2017

CaseChat Overview and Summary

The case involved a dispute between Smith and Thwaites regarding a family provision claim. The plaintiff, Smith, sought further provision from the estate of Williams. The defendant, Thwaites, made an offer of compromise that was marginally higher than the amount the plaintiff was eventually awarded. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the plaintiff's costs, which were significantly higher than the defendant's offer, were reasonable and proportionate to the issue in dispute. The court was required to consider the overarching obligations of the Civil Procedure Act 2010, specifically sections 24 and 29, and the implications of Supreme Court (General Civil Procedure) Rules 2015, rule 26.08(3).

The court acknowledged the harsh effect of rule 26.08(3) on both parties, as it operated to limit the plaintiff's costs despite the marginal difference between the award and the offer. The court recognised the importance of the overarching obligations and the need to ensure that the costs awarded were reasonable and proportionate to the issue in dispute. In light of these considerations, the court deemed it necessary to investigate the plaintiff's costs to determine whether they were reasonable and proportionate. The court found that the plaintiff's costs were excessive and not proportionate to the issue in dispute, leading to a reduction in the costs awarded.

The court ordered that the plaintiff's costs be reduced to a level that was reasonable and proportionate to the issue in dispute. The court noted that the overarching obligations required a careful consideration of the costs in the context of the dispute, and the effect of rule 26.08(3) on both parties. The court concluded that the plaintiff's costs were not reasonable and proportionate, and ordered a reduction in the costs awarded. The final orders of the court reflected the need to balance the overarching obligations with the specific circumstances of the case, and to ensure that the costs awarded were fair and proportionate to the issue in dispute.

Orders