Small v Phillips (No 3) - [2020] NSWCA 24

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Small v Phillips (No 3) [2020] NSWCA 24
Hearing dates: On the papers (Submissions by 12 December 2019)
Decision date: 26 February 2020
Before: Brereton JA; McCallum JA; Emmett AJA
Decision:
Order that:
(1)   the costs of all parties, both of the appeal and of the proceedings in the Equity Division, be paid out of the estate of Mrs Phillips;
(2)   the costs of the Appellant be paid on the indemnity basis;
(3)   the costs of the First and Second Respondents be paid on the ordinary basis; and
(4)   the costs of the Third and Fourth Respondents be paid on the indemnity basis.

Catchwords: CIVIL PROCEDURE – Court of Appeal – Costs orders – Costs orders for proceedings in the exercise of protective jurisdiction – Whether the appellant’s costs should be paid on the ordinary basis or the indemnity basis.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: A Ltd v J (No 3) [2017] NSWSC 931
Re MP’s Statutory Will [2019] NSWSC 331
Re K’s Statutory Will [2017] 96 NSWLR 69; [2017] NSWSC 1711
Small v Phillips (No 2) [2019] NSWCA 268
Category: Costs
Parties: Anthony Phillip Small (Appellant)
Sharonne Rose Phillips (First Respondent)
Robert Ellis Phillips (Second Respondent)
Sharonne Rose Phillips and Robert Ellis Phillips in their capacity as private managers of the estate of Millie Phillips (Third Respondent)
Millie Phillips by her Tutor, Michaela Money (Fourth Respondent)
Representation:
Counsel:
C J Birch SC with J Mack (Appellant)
H Morrison (First Respondent)
L Ellison SC (Second Respondent)
C Homer (Third Respondent)
M K Meek SC (Fourth Respondent)
Solicitors:
Dukes Lawyers (Appellant)
David Landa Stewart (First Respondent)
Glass Goodwin (Second Respondent)
Brown Wright Stein (Third Respondent)
MJM Lawyers (Fourth Respondent)

File Number(s): 2019/147133
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity – Protective List

Citation:

[2019] NSWSC 331

Date of Decision:

15 April 2019

Before:

Lindsay J

File Number(s):

2018/373426

Judgment

THE COURT: On 25 September 2019, for reasons published on 4 November 2019[1] (the Principal Reasons), the Court allowed an appeal from orders made on 15 April 2019 by a judge of the Equity Division. [2] In these reasons, terms will be used as defined in the Principal Reasons. By the orders of 25 September 2019, the Court gave leave to Anthony under s 19 of the Succession Act 2006 (NSW) (the Succession Act) to apply for an order under s 18 of the Succession Act and, pursuant to s 18, ordered that a will of Mrs Phillips be made in the form set out in Annexure A to those orders. The Court reserved all questions of the costs of the appeal and the costs of the proceedings in the Equity Division. The Court has now received written submissions from all parties on the questions that were reserved.
1. See Small v Phillips (No 2) [2019]…

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 Small v Phillips (No 3)

Details

AGLC: Small v Phillips (No 3) [2020] NSWCA 24
Case: [2020] NSWCA 24
Decision Date: 26 February 2020

CaseChat Overview and Summary

The appeal concerned the appropriate basis for awarding costs in proceedings brought within the protective jurisdiction of the court, specifically relating to the estate of Mrs Phillips. The appellant sought an order that their costs be paid on an indemnity basis, while the first and second respondents sought costs on the ordinary basis, and the third and fourth respondents also sought costs on an indemnity basis. The Court of Appeal was required to determine whether the appellant's costs, and indeed the costs of all parties, should be paid out of Mrs Phillips' estate, and on what basis (ordinary or indemnity) each party's costs should be assessed.

The Court determined that the costs of all parties, both for the appeal and the proceedings in the Equity Division, should be paid out of the estate of Mrs Phillips. This reflected the court's exercise of its protective jurisdiction, where the interests of the person under protection (Mrs Phillips) are paramount. The court further ordered that the appellant's costs and the costs of the third and fourth respondents be paid on the indemnity basis. Conversely, the costs of the first and second respondents were ordered to be paid on the ordinary basis.

Orders

Orders of the court

Order that:

(1) the costs of all parties, both of the appeal and of the proceedings in the Equity Division, be paid out of the estate of Mrs Phillips;

(2) the costs of the Appellant be paid on the indemnity basis;

(3) the costs of the First and Second Respondents be paid on the ordinary basis; and

(4) the costs of the Third and Fourth Respondents be paid on the indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Small v Phillips (No 3) [2020] NSWCA 24
Hearing dates:	On the papers (Submissions by 12 December 2019)
Decision date:	26 February 2020
Before:	Brereton JA; McCallum JA; Emmett AJA
Decision:	Order that: (1) the costs of all parties, both of the appeal and of the proceedings in the Equity Division, be paid out of the estate of Mrs Phillips; (2) the costs of the Appellant be paid on the indemnity basis; (3) the costs of the First and Second Respondents be paid on the ordinary basis; and (4) the costs of the Third and Fourth Respondents be paid on the indemnity basis.
Catchwords:	CIVIL PROCEDURE – Court of Appeal – Costs orders – Costs orders for proceedings in the exercise of protective jurisdiction – Whether the appellant’s costs should be paid on the ordinary basis or the indemnity basis.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	A Ltd v J (No 3) [2017] NSWSC 931 Re MP’s Statutory Will [2019] NSWSC 331 Re K’s Statutory Will [2017] 96 NSWLR 69; [2017] NSWSC 1711 Small v Phillips (No 2) [2019] NSWCA 268
Category:	Costs
Parties:	Anthony Phillip Small (Appellant) Sharonne Rose Phillips (First Respondent) Robert Ellis Phillips (Second Respondent) Sharonne Rose Phillips and Robert Ellis Phillips in their capacity as private managers of the estate of Millie Phillips (Third Respondent) Millie Phillips by her Tutor, Michaela Money (Fourth Respondent)
Representation:	Counsel: C J Birch SC with J Mack (Appellant) H Morrison (First Respondent) L Ellison SC (Second Respondent) C Homer (Third Respondent) M K Meek SC (Fourth Respondent) Solicitors: Dukes Lawyers (Appellant) David Landa Stewart (First Respondent) Glass Goodwin (Second Respondent) Brown Wright Stein (Third Respondent) MJM Lawyers (Fourth Respondent)
File Number(s):	2019/147133
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Equity – Protective List Citation: [2019] NSWSC 331 Date of Decision: 15 April 2019 Before: Lindsay J File Number(s): 2018/373426