Salmon v Osmond (No 3)

[2015] NSWCA 271

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Salmon v Osmond (No 3) [2015] NSWCA 271
Hearing dates:	On the papers
Decision date:	09 September 2015
Before:	Beazley P; McColl JA; Gleeson JA
Decision:	The appellants’ notice of motion filed 4 June 2015 dismissed with costs.
Catchwords:	COSTS – succession – one claimant partially successful on claim – another claimant unsuccessful on claim – whether unsuccessful party should bear entire cost of defending the proceedings – unsuccessful party to bear portion of costs attributable to her claim
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Salmon v Osmond [2015] NSWCA 42 Salmon v Osmond (No 2) [2015] NSWCA 131
Category:	Procedural and other rulings
Parties:	Michael Augustine Salmon, Esmae Frances Salmon and Sue Frances Salmon (Appellants) Kerryn Therese Osmond (First Respondent) Donna Maree Peters (Second Respondent)
Representation:	Counsel: D A Smallbone (Appellants) M K Meek SC; N C T Bilinsky (Respondents)   Solicitors: RJI Legal (Appellants) Peter Evans & Associates (Respondents)
File Number(s):	CA 2013/245425
Decision under appeal	Court or tribunal: Supreme Court Citation: Peters v Salmon [2013] NSWSC 953 Peters v Salmon (No 2) [2013] NSWSC 1071 Date of Decision: 19 July 2013; 17 September 2013 Before: Ball J File Number(s): 2012/60490

Judgment

1. THE COURT: This Court delivered its principal judgment in this matter on 10 March 2015: Salmon v Osmond [2015] NSWCA 42. In that judgment the Court made orders for provision for the first respondent, Kerryn Therese Osmond, out of the estate of the late Maurice Augustine Salmon. The Court also made consequential orders and orders for costs, including in relation to the second respondent, Donna Maree Peters. On 18 May 2015, the Court delivered a further judgment: Salmon v Osmond (No 2) [2015] NSWCA 131, correcting a clerical error in its earlier orders and varying order 6 to correctly accord with its reasons. For ease of reference, this judgment will continue to refer to the appellants, the executors of the deceased’s will, who were the defendants in the court below, as the appellants, and to Kerryn and Donna by their first names, as was the case in the principal judgment.

2. By notice of motion filed 4 June 2015, the appellants sought an order that order 6, as varied, be omitted from the Court’s orders on the basis that it did not properly give effect to the Court’s intention in the principal judgment. Kerryn and Donna oppose the motion.

3. In order to determine whether the appellants are entitled to the relief they seek, it is necessary to briefly recount the orders made in this matter at trial and in this Court.

4. In the primary judgment in the court below: Peters v Salmon [2013] NSWSC 953, Ball J ordered that Donna’s claim be dismissed. His Honour ordered that additional provision be made out of the estate of the deceased for Kerryn in the sum of $200,000. His Honour stood the matter over to provide an opportunity for the parties to…