Legal Research
Cases
Shelley v Prager (No 2)

Shelley v Prager (No 2)

Case [2020] NSWSC 1553 4 November 2020

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Shelley v Prager (No 2) [2020] NSWSC 1553
Hearing dates: On the papers
Date of orders: 4 November 2020
Decision date: 04 November 2020
Jurisdiction: Equity - Family Provision List
Before: Williams J
Decision:
The plaintiff is to pay the defendants’ costs on the ordinary basis. The balance of the defendants’ costs (that is, the difference between the defendants’ costs on the ordinary basis and on the indemnity basis) are to be paid out of the estate of the late William Andrew Watson. The Court makes no order as to the plaintiff’s costs, with the intention that the plaintiff will bear her own costs.

Catchwords:
COSTS – whether unsuccessful claimant for provision out of deceased estate should pay own costs and pay defendant executors’ costs – no question of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Succession Act 2006 (NSW), s 99
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Bartkus v Bartkus [2010] NSWSC 889
Carey v Robson [2009] NSWSC 1199
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Daniels v Hall (No 2) [2014] WASC 272
Detheridge v Detheridge [2019] NSWSC 183
Harkness v Harkness(No 2) [2012] NSWSC 35
Hinderry v Hinderry(No 2) [2016] NSWSC 1577
McCusker v Rutter [2010] NSWCA 318
Meres v Meres (No 2) [2017] NSWSC 523
Moussa v Moussa [2006] NSWSC 509
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Salmon v Osmond [2015] NSWCA 42
Shelly v Prager [2020] NSWSC 1393
Singer v Berghouse (1993) 67 ALJR 708

Category: Costs
Parties: Dianne Elizabeth Shelly (Plaintiff)
Susan Elizabeth Prager (First Defendant)
Michelle Leah Warren (Second Defendant)
Representation:
Counsel:
Ms M Tibbey (Plaintiff)
Ms D Reid (Defendants)
Solicitors:
Brazel Moore Lawyers (Plaintiff)

File Number(s): 2019/121925
Publication restriction: N/A

Judgment

Introduction and summary of decision

On 12 October 2020, I published the principal judgment dismissing the plaintiff’s claim for provision out of the estate of her late father: Shelly v Prager [2020] NSWSC 1393 (the Judgment).
The question of the costs of the proceeding was reserved to be determined on the papers after receiving written submissions from the parties.
The defendant executors made written submissions on 22 October 2020 contending that the plaintiff’s costs should not be paid out of the estate and the plaintiff should pay the defendants’ costs.
The plaintiff made written submissions on 26 October 2020 contending that her costs should be paid out of the estate on the ordinary basis and the defendants’ costs should be paid out of the estate on the indemnity basis.
Both parties made further written submissions on 2 November 2020 responding to each other’s earlier submissions.
For the reasons that follow, I have decided to make the following orders:

no order as to the plaintiff’s costs of the proceeding, with the intention that she will bear her own costs;

the plaintiff is to pay the defendants’ costs of the proceeding on the ordinary…

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 Shelley v Prager (No 2)

Details

AGLC: Shelley v Prager (No 2) [2020] NSWSC 1553
Case: [2020] NSWSC 1553
Decision Date: 04 November 2020

CaseChat Overview and Summary

The case of Shelley v Prager (No 2) involved the plaintiff, Shelley, who sought to recover costs from the defendant, Prager, who was the executor of an estate. Shelley had previously brought an unsuccessful claim for a provision out of the estate of the deceased, who was his father. The dispute was heard in the Supreme Court of Queensland. The court was required to determine whether Shelley should bear his own costs and those of the defendant, as well as whether there were any principles involved in this matter that necessitated further consideration.

The court examined the principle that, generally, a party who is unsuccessful in their litigation should bear their own costs and pay the costs of the successful party. However, the court found that there were no principles that would necessitate deviation from this general rule in this particular case. The court also considered that Shelley had acted in good faith in pursuing his claim, which was not frivolous or vexatious. Based on these considerations, the court concluded that Shelley should bear his own costs and pay the defendant's costs.

The court's decision was based on the principle that unsuccessful claimants should bear their own costs and the costs of the successful party. The court found that there were no exceptional circumstances that would warrant a departure from this general principle in this case. The court also noted that Shelley had acted in good faith, which was a relevant factor in determining whether he should bear his own costs and pay the defendant's costs. The court did not find it necessary to make any further orders in the case.

Orders