COSTS – Application by unsuccessful party – where defendant was successful in substantive proceedings – whether variation of usual costs order warranted – whether unsuccessful party has
demonstrated why the usual approach ought not apply
James Young Ross (Plaintiff) Donna Maree Gordon (First Defendant) Donna Maree Gordon as Trustee of the Olga Hart Trust (Second Defendant)
Donna Maree Gordon as Executor of the Estate of Olga Hart
(Third Defendant)
Representation:
Counsel
T Crispin (Plaintiff)
W Sharwood (Defendant)
Solicitors
Ray Swift Moutrage & Associates (Plaintiff) Sharman Robertson (Defendant)
File Number:
SC 80 of 2019
LOUKAS-KARLSSON J:
Introduction
1. Mr James Ross (the plaintiff) brought a claim against Ms Donna Gordon in her own right, in her capacity as trustee of the Olga Hart Trust (the Trust), and in her capacity as Executor of the estate of her late mother, Olga Hart (the defendants).
2. The plaintiff sought declaratory relief and an order for provision pursuant to s 8 of the Family Provision Act 1969 (ACT) (Family Provision Act). In the alternative, the plaintiff sought damages for the tort of devastavit, and relief in equity. On 24 March 2021, I delivered judgment in favour of the defendants and ordered that the plaintiff was to
(Ross v Gordon). The effect of the substantive order was such that the plaintiff received no money from the Estate of the deceased Olga Hart.
Orders Sought
3. Initially,…
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.
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Details
AGLC
Ross v Gordon (No 2) [2021] ACTSC 136
Case
[2021] ACTSC 136
Decision Date
CaseChat Overview and Summary
This case concerned a claim brought by Mr James Ross against Ms Donna Gordon in various capacities, seeking declaratory relief, an order for provision, damages for the tort of devastavit, and relief in equity. The defendants were successful in the substantive proceedings, and the plaintiff was ordered to pay the defendants’ costs. The plaintiff then applied for the costs order to be varied so that the parties would bear their own costs. The defendants opposed the application and sought the original order that the plaintiff pay the costs of the proceedings. The Court considered the principles applicable to Calderbank offers and the relevant considerations for making alternative costs orders where there had been a rejection of favourable settlement offers which had been equal to or better than the results after a finally determined contested hearing. The Court held that the usual approach will not apply where the Court considers that other orders are necessary to achieve justice. The Court held that in this case, justice requires that the unsuccessful party must pay the costs of the successful party. The plaintiff was ordered to pay the defendants’ costs.