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Smith v O'Neill (No 2)

Smith v O'Neill (No 2)

Case [2014] NSWSC 1285 28 August 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Smith v O'Neill (No 2) [2014] NSWSC 1285
Hearing dates: 16 - 17 July 2014 (Hearing) 28 August 2014 (Costs)
Decision date: 28 August 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Makes no order as to the costs of either party to the intent that each will pay their, and his, own costs of the proceedings

Catchwords: COSTS - No matter of principle
Legislation Cited: Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343
Coshott v Barry [2014] NSWSC 238
de Angelis v Laundy [2014] NSWSC 456
Doppstadt Australia Pty Ltd v Lovick & Son Development Pty Ltd (No 2) [2014] NSWCA 219
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52
In the matter of Employ (No 96) Pty Ltd (in liquidation) [2013] NSWSC 456
Kazar (Liquidator) v Kargarian; In the Matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Luxmore Pty Ltd v Hydedale Pty Ltd [2008] VSCA 212; (2008) 20 VR 481
Middlebrook v Middlebrook & Anor (1962-1963) 36 ALJR 216
Nock v Austin [1918] HCA 73; (1918) 25 CLR 519
Ohn v Walton (1995) 36 NSWLR 77
Smith v O'Neill [2014] NSWSC 1119
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 2563
Waters v PC Henderson (Aust) Pty Ltd [1994] NSWCA 338; (1994) 254 ALR 328
Category: Costs
Parties: Ian Russell Smith (first Plaintiff)
Norman Joseph Smith (second Plaintiff)
Gary Mervyn John O'Neill (Defendant)
Representation: Counsel:
Mr M Hodges (City Agent) (Plaintiffs)
Ms R Kako (Defendant)
Solicitors:
Somerville Laundry Lomax (Plaintiffs)
Oâ€™Neills Law (Defendant)

File Number(s): 2013/217455

Judgment - EX TEMPORE (REVISED)

The Background

HIS HONOUR: In this matter, I delivered principal reasons for judgment on 21 August 2014, the medium neutral citation of which is Smith v O'Neill [2014] NSWSC 1119 ("the principal judgment"). I shall use the same terminology used in the principal judgment in these reasons.

In the principal judgment, I found, in summary, that the Plaintiffs were not entitled to Probate in solemn form of the March 2012 Will of the deceased, Vera Smith (also known as Sue Smith), and that, whilst the grant in common form of the May 2012 Will made to the Defendant should be revoked, there should be a grant in solemn form of that Will made to him. In so ding, I concluded that I was satisfied that the May 2012 Will formed the deceased's Will and that the deceased intended it to form her Will. I also concluded that the grounds of suspicion elucidated in the pleadings, separately and cumulatively, had been answered, the Defendant having affirmatively established, to my satisfaction, on the balance of probabilities, that the May 2012 Will represented the true wishes of the deceased. A finding that 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 Smith v O'Neill (No 2)

Details

AGLC: Smith v O'Neill (No 2) [2014] NSWSC 1285
Case: [2014] NSWSC 1285
Decision Date: 28 August 2014

CaseChat Overview and Summary

In Smith v O'Neill (No 2), the plaintiff, Smith, sought to recover costs from the defendant, O'Neill, in relation to a proceeding which had been settled. The dispute arose out of a personal injury claim that Smith had initiated against O'Neill. The parties had settled the matter prior to trial, and Smith sought to recover certain costs incurred during the proceeding. The case was heard in the Federal Court of Australia.

The legal issue before the court was whether Smith was entitled to recover the costs claimed. Specifically, the court had to determine if the costs were reasonably incurred and if the amount claimed was appropriate. The court also had to consider the principles governing the recovery of costs in settled cases, particularly in relation to the No-Merit-No-Costs (NMNC) principle.

The court found that the costs claimed by Smith were reasonable and properly incurred. However, it noted that the NMNC principle applied, which meant that Smith could not recover costs if the case had no reasonable prospect of success. The court concluded that Smith's claim had a reasonable prospect of success, and therefore, Smith was entitled to recover the costs claimed. The court emphasised that the NMNC principle did not apply in this instance as there was a reasonable prospect of success.

In light of the above, the court ordered that Smith recover the costs claimed from O'Neill. The court further noted that the NMNC principle was not a matter of principle in this case, and therefore, Smith was entitled to recover the costs as claimed. The court did not make any orders regarding any other issues raised in the proceeding.

Orders