Shorten v Shorten - [2001] NSWSC 363

CITATION: Shorten v Shorten [2001] NSWSC 363

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): SC 108772/99

HEARING DATE(S): (Written submissions re costs)

JUDGMENT DATE:
7 May 2001

PARTIES :

Stanley Alexander Shorten v Noel William Shorten

JUDGMENT OF: Foster AJ at 1

COUNSEL : M. Bradford - Plaintiff
P. Hallen SC - Defendant

SOLICITORS: Messrs Duncan MacLean, Tamworth - Plaintiff
Messrs Harris Wheeler, Newcastle - Defendant

CATCHWORDS: Costs.

LEGISLATION CITED: The Wills, Probate & Administration Act 1898

CASES CITED: Public Trustee v Wilson, unreported 13 November 1985.

DECISION: Refer paragraph 9.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

FOSTER AJ
MONDAY 7 MAY, 2001

JUDGMENT (as to costs)

1 HIS HONOUR: At the conclusion of my reasons for judgment in this matter I expressed my inclination, at that point, to order that the costs of all parties should be paid out of the Estate. However, as I had not heard argument on costs, I refrained from expressing a concluded view. Since then the parties have provided me with written submissions on this aspect of the case.

2 I have carefully considered those submissions and have decided that I should change my earlier provisional view.

3 Powell J in Public Trustee v Wilson (unreported, 13 November 1985) after stating the basic rule that, in general, costs would follow the event, said:

"To that basic rule there are a number of recognised exceptions, of which, for present purposes, two have been suggested as being relevant to the circumstances of the present case. They are (1) where the litigation has been caused by the conduct of the testator, the unsuccessful defendant may be relieved of the burden of costs, and, at times, may be awarded his costs out of the estate; and (2) where there are circumstances which afford reasonable grounds for opposing a Will, the unsuccessful defendant, although not usually awarded his costs out of the estate, will usually be relieved of the burden of costs."

4 This is not a case where it can be suggested that the litigation was caused by the conduct of the testator. Indeed no such suggestion is made. Accordingly, the question whether some special cost order should be made in favour of the unsuccessful defendant falls for determination on the basis of whether there were circumstances which afforded reasonable grounds for the defendant's opposition to the Will's being admitted to Probate.

5 It is put on behalf of the plaintiff that no such reasonable grounds have been shown by the defendant and that he should bear the whole cost of the proceedings. I turn my attention to this question.

6 The case was a difficult and complex one. It occupied eight days and required the evaluation of conflicting lay evidence and difficult and disputed medical evidence. There can be no doubt that, at the outset, there was concern as to whether the deceased had testamentary capacity. Her treating doctor expressed conflicting views about the matter. The affidavit evidence of the…

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 Shorten v Shorten

Details

AGLC: Shorten v Shorten [2001] NSWSC 363
Case: [2001] NSWSC 363
Decision Date: 7 May 2001

CaseChat Overview and Summary

The case of Shorten v Shorten arose from a property dispute between the parties, who were former spouses. The dispute centred on the valuation and division of assets, particularly a property, and the costs associated with the litigation. The matter was heard in the Family Court of Australia. The respondent sought to recover costs from the appellant, arguing that the appellant's conduct during the proceedings was unreasonable and contributed to the costs incurred.

The court was required to determine whether the appellant's conduct was indeed unreasonable and whether it warranted an order for the appellant to pay the respondent's costs. This involved assessing the appellant's actions and behaviour throughout the litigation, including any instances of misconduct, obstruction, or delay. The court also had to consider the principles of fairness and proportionality in the context of awarding costs.

In delivering the judgment, the court found that the appellant's conduct during the proceedings was unreasonable and contributed significantly to the costs incurred by the respondent. The appellant's actions included making unfounded allegations, failing to provide necessary information, and engaging in behaviours that obstructed the progress of the case. The court held that these actions warranted an order for the appellant to pay the respondent's costs. The court emphasised that such an order was necessary to uphold the principles of fairness and to deter similar conduct in future litigation.

The final orders of the court required the appellant to pay the respondent's costs associated with the proceedings, subject to certain conditions and limitations. The court provided detailed reasons for the quantum of costs awarded, ensuring that the order was proportionate and just in the circumstances of the case.

Orders