Samowitz v Wilson - [2013] NSWSC 1194

Supreme Court

New South Wales

Medium Neutral Citation: Samowitz v Wilson [2013] NSWSC 1194
Hearing dates: 9 August 2013
Decision date: 30 August 2013
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to para [33] of judgment.

Catchwords: PROCEDURE - costs - costs on discontinuance of proceedings - proceedings concerned defendant's capacity to revoke enduring power of attorney - medical reports indicated that defendant subsequently had capacity and could revoke power of attorney regardless of any prior incapacity - whether Court should order otherwise pursuant to r 42.19(2) of the Uniform Civil Procedure Rules 2005 - whether it is sufficient for an otherwise order that plaintiffs acted reasonably in commencing proceedings
Legislation Cited: Legal Profession Act 2004 (NSW)
Cases Cited: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Australiawide Airlines Limited v Aspirion Pty Ltd [2006] NSWCA 365
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194
Category: Principal judgment
Parties: Kate Samowitz (Plaintiff)
Deborah Wilson (Defendant)
Representation: Counsel:
A Hourigan (Plaintiff)
D A Smallbone (Defendant)
Solicitors:
Booth Boorman Kiely (Plaintiffs)
Terrence Stern, Solicitor (Defendant)

File Number(s): 2012/136268

Judgment

HIS HONOUR: The plaintiffs wish to discontinue these proceedings. Unless a contrary order is made the plaintiffs will be liable to pay the defendant's costs up to the filing of the notice of discontinuance (Uniform Civil Procedure Rules 2005, r 42.19(2)). The plaintiffs seek such a contrary order. The defendant consents to the discontinuance but opposes the application that the plaintiffs have leave to discontinue the proceedings on terms that each party pay her own costs. The defendant submits that there is no reason to depart from the prima facie position that the defendant is entitled to her costs.

Rule 42.19 relevantly provides:

"42.19 Proceedings discontinued

(cf SCR Part 52A, rule 21; DCR Part 39A, rule 24; LCR Part 31A, rule 19)

(1) This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1.

(2) Unless the court orders otherwise or the notice referred to in rule 12.1 (2) otherwise provides, the plaintiff must pay such of the defendant's costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued.

..."

The plaintiffs are daughters of the defendant. They commenced these proceedings on 30 April 2012 by summons. The summons sought declarations that three instruments executed by the defendant dated 17 February 2011 and 30 November 2011 were invalid due to the defendant's incapacity. They also sought a declaration that a power of attorney executed by the defendant dated 5 November 2009 was valid and an order that a Mr Cowen produce accounts and records relating to the defendant's estate. Mr Cowen was not joined as a defendant notwithstanding that an order was sought against him.

On 5 November…

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 Samowitz v Wilson

Details

AGLC: Samowitz v Wilson [2013] NSWSC 1194
Case: [2013] NSWSC 1194
Decision Date: 30 August 2013

CaseChat Overview and Summary

The matter of Samowitz v Wilson involved a dispute concerning the capacity of the defendant to revoke an enduring power of attorney. The plaintiffs sought to determine the defendant's capacity to revoke the power of attorney, given medical reports indicating that the defendant subsequently had the capacity to do so. The proceedings were eventually discontinued by the plaintiffs, and the issue before the court was whether the plaintiffs should be ordered to pay the defendant's costs under rule 42.19(2) of the Uniform Civil Procedure Rules 2005. The primary legal issue was whether the Court should order the plaintiffs to pay the defendant's costs, despite the plaintiffs having acted reasonably in commencing the proceedings.

The court held that the plaintiffs' decision to discontinue the proceedings was reasonable, as the medical reports indicated that the defendant had regained capacity and could revoke the power of attorney. The court noted that the plaintiffs had acted on the basis of the available evidence and had no reason to believe that the defendant would not have had the capacity to revoke the power of attorney. The court concluded that it was sufficient for the plaintiffs to have acted reasonably in commencing the proceedings and that there was no basis to order the plaintiffs to pay the defendant's costs under rule 42.19(2) of the Uniform Civil Procedure Rules 2005.

The court dismissed the defendant's application for costs, finding that the plaintiffs had acted reasonably in discontinuing the proceedings. The court did not consider it appropriate to order the plaintiffs to pay the defendant's costs, given the circumstances of the case. The court's decision emphasised the importance of considering the reasonableness of the plaintiffs' actions in discontinuing the proceedings and the need for the court to balance the interests of both parties when determining whether to order costs on discontinuance.

Orders