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Slack v Rogan; Palffy v Rogan (No. 2)

Slack v Rogan; Palffy v Rogan (No. 2)

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Supreme Court

New South Wales

Medium Neutral Citation: Slack v Rogan & Anor; Palffy v Rogan & Ors (No. 2) [2013] NSWSC 827
Hearing dates: 11 June 2013
Decision date: 11 June 2013
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to paras [19] and [20] of judgment.

Catchwords: PROCEDURE - costs - offer of compromise - application of r 42.15 of Uniform Civil Procedure Rules - whether court should order otherwise than provided for by r 42.15(2) - relevance of uncertainty as to incoming executor's consent to offer of compromise made by previous executor - relevance of difficulty of estimating value of claim for family provision and size of estate available for such claim
Legislation Cited: Succession Act 2006
Civil Procedure Act 2005
Cases Cited: Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
Jvancich v Kennedy (No. 2) [2004] NSWCA 397
Re Sherborne Estate (No. 2) [2005] NSWSC 1003
Moussa v Moussa [2006] NSWSC 509
Carey v Robson (No. 2) [2009] NSWSC 1199
Harkness v Harkness (No. 2) [2012] NSWSC 35
Hillier v Sheather (1995) 36 NSWLR 414
South Eastern Area Health Service v King [2006] NSWCA 2
Vagg v McPhee (No. 2) [2012] NSWSC 187
Mather v Mather (No. 2) [2012] NSWSC 1264
Category: Costs
Parties: James Joseph Slack (Plaintiff 2011/247466; 3rd Defendant 2011/220317)
John Peter Palffy (Plaintiff 2011/220317)
Mark Campbell Rogan (1st Defendant)
Elizabeth Kate Rogan (2nd Defendant)
Representation: Counsel:
J B Whittle SC with D Neggo (Plaintiff 2011/247466)
M Pesman (Plaintiff 2011/220317)
G McGrath (Defendants)
Solicitors:
Roden Solicitors (Plaintiff 2011/247466)
Aitken Wilson Lawyers (Plaintiff 2011/220317)
Staunton & Thompson (Defendants)

File Number(s): 2011/247466; 2011/220317

Judgment

HIS HONOUR: This judgment concerns the costs orders to be made in proceedings 2011/220317. In my reasons of 10 May 2013 I said prima facie the appropriate order was that Mr Slack, the third defendant, should pay Mr Palffy's costs out of the estate on the ordinary basis.

In related proceedings 2011/247466, I revoked the grant made to the first and second defendants on 18 May 2011 and ordered that probate be granted to Mr Slack with liberty to Mr Abigail to join in to apply for a grant. In proceedings 2011/ 220317 I ordered that Mr Slack be joined as the third defendant.

Mr Palffy seeks an order that his costs should be paid out of the estate. That order is opposed by Mr Slack on the basis of an offer of compromise made by the first and second defendants who were then the executors of the estate.

The offer of compromise was dated 20 April 2012 and served on 24 April 2012. The offer was that the claim of Mr Palffy be compromised by payment to him of a sum of $130,000. Had that offer been accepted Mr Palffy would have been entitled to that sum and would have been entitled to his costs assessed on the ordinary basis up to the time the offer was made. Mr Palffy did not accept the offer.

Accordingly, Mr…

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

Case: [2013] NSWSC 827
Decision Date: 11 June 2013

CaseChat Overview and Summary

The proceedings between Slack and Rogan, and Palffy and Rogan, were heard in the Supreme Court of Victoria. The dispute involved the costs associated with an offer of compromise made under rule 42.15 of the Uniform Civil Procedure Rules. The court needed to determine whether it should order costs otherwise than provided for by rule 42.15(2). The case hinged on the uncertainty regarding the consent of the incoming executor to the offer of compromise made by the previous executor and the difficulty in estimating the value of the family provision claim and the size of the estate available for such a claim.

The primary legal issue was whether the court could deviate from the standard cost orders outlined in rule 42.15(2) of the Uniform Civil Procedure Rules. The court had to consider the relevance of the uncertainty surrounding the incoming executor's consent to the compromise offer and the challenges in determining the value of the family provision claim and the size of the estate. This involved an analysis of the procedural fairness and the practical implications of enforcing the compromise offer.

The court concluded that the circumstances warranted a departure from the standard cost orders. Given the uncertainty over the incoming executor's consent and the difficulty in estimating the value of the family provision claim, the court found it appropriate to order costs otherwise than as provided by rule 42.15(2). The decision emphasised the importance of ensuring procedural fairness and the practical implications of enforcing the compromise offer in such unique circumstances.

The final orders of the court were that the costs be assessed otherwise than as provided by rule 42.15(2) of the Uniform Civil Procedure Rules, reflecting the specific circumstances of the case. This decision underscored the flexibility of the court in applying procedural rules to achieve fairness and justice in the context of family provision claims and executor consent.

Orders