Smith v Moore (No 2)

[2020] NSWSC 1640

Supreme Court

New South Wales

Medium Neutral Citation:

Smith v Moore (No 2) [2020] NSWSC 1640

Hearing dates:

On the papers

Date of orders:

18 November 2020

Decision date:

18 November 2020

Jurisdiction:

Equity - Family Provision List

Before:

Williams J

Decision:

The plaintiff is to pay the defendant’s costs on the ordinary basis. The balance of the defendant’s costs (being the difference between the defendant’s costs on the ordinary basis and on the indemnity basis) is to be paid out of the estate of the late Yvonne Gwendoline Smith. The Court makes no order as to the plaintiff’s costs, with the intention that the plaintiff will bear his own costs.

Catchwords:

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

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Succession Act 2006 (NSW), ss 59 and 99

Uniform Civil Procedure Rules 2005 (NSW), rr 42.1 and 42.20

Cases Cited:

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Detheridge v Detheridge [2019] NSWSC 183

Haertsch v Whiteway (No 2) [2020] NSWCA 287

Harkness v Harkness (No 2) [2012] NSWSC 35

Hinderry v Hinderry(No 2) [2016] NSWSC 1577

Meres v Meres (No 2) [2017] NSWSC 523

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Smith v Moore [2020] NSWSC 1446

Category:

Costs

Parties:

Kenneth David Smith (Plaintiff)
Minerva Ruth Moore (Defendant)

Representation:

Counsel:
Mr J E Armfield (Plaintiff)
Mr S F Hughes (Defendant)

Solicitors:
Soothill & Associates Lawyers (Plaintiff)
Mark Mulock & Co (Defendant)

File Number(s):

2019/191473

Publication restriction:

N/A

Judgment

Introduction and summary of decision

1. On 19 October 2020, I published the principal judgment dismissing the plaintiff’s claim for provision out of the estate of her late mother: Smith v Moore [2020] NSWSC 1446 (the Judgment).

2. The question of the costs of the proceeding was reserved to be determined on the papers after receiving written submissions from the parties.

3. The defendant executor made written submissions on 2 November 2020 contending for an order that the plaintiff pay her costs of the proceeding on the ordinary basis, with the balance of her costs (that is, the difference between the defendant’s costs on an ordinary basis and on an indemnity basis) to be paid out of the deceased’s estate.

4. The plaintiff made written submissions on 3 November 2020 contending that there should be no order as to his costs (with the intention that he bear his own costs of the proceeding) and that the defendant’s costs should be paid out of the estate on an indemnity basis.

5. Both parties subsequently notified the Court that they did not wish to make further submissions responding to each other’s earlier submissions.

6. For the reasons that follow, I have decided to make the following orders:

1. no order as to the plaintiff’s costs of the proceeding, with the intention that he will bear his own costs;

2. the plaintiff is to pay…