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Smith v Smith (No 2)

Smith v Smith (No 2)

Case [2011] NSWSC 1105 12 October 2011

Costs

Offer of Compromise

Calderbank Letter

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Smith & Anor v Smith (No 2) [2011] NSWSC 1105
Hearing dates: 12 September 2011
Decision date: 12 October 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(1) Order that the Plaintiffs' costs, calculated on the ordinary basis, of the proceedings, other than the costs of the Defendant's Notice of Motion returnable on 31 August 2011 and the costs of the hearing to determine the costs, in respect of which each party is to pay their, or his, own costs, shall be paid out of the estate of the deceased.
(2) Orders made consequent upon reasons for decision in Smith & Anor v Smith [2011] NSWSC 938.

Catchwords: Costs of proceedings in which each of the Plaintiffs does not achieve a result more favourable than offer made in Calderbank offer; whether Offer of Compromise effective
Legislation Cited: Civil Procedure Act 2005
Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Bartkus v Bartkus [2010] NSWSC 889
Carey v Robson [2010] NSWCA 212
City of Sydney v Streetscape Projects (Australia) Pty Limited & Anor [2011] NSWSC 990
Commonwealth of Australia v Gretton [2008] NSWCA 117
D'Apice v Gutkovich; Estate of the Late Irene Rachel Abraham (No 3) [2010] NSWSC 1458
Dean v Stockland Property Management Pty Ltd and Anor (No 2) [2010] NSWCA 141
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61;
Gilroy v Neaves & Anor [2005] NSWSC 1003
Johnson v MNG Investments Pty Ltd t/as Australian Temporary Fencing [2011] ACTSC 150
Jvancich v Kennedy (No 2) [2004] NSWCA 397
Leichhardt Municipal Council v Green [2004] NSWCA 341
Moussa v Moussa [2006] NSWSC 509
Noon v Bondi Beach Astra Retirement Village Pty Ltd (No 2) [2010] NSWCA 285
Singer v Berghouse [1993] HCA 35; (1993) 114
Ohn v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council (1998) 193 CLR 72
Sherborne Estate (No 2), Re; Vanvalen v Neaves [2005] NSWSC 1003
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Smith v Smith [2011] NSWSC 938
Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194
Vaughan v Hoskovich (No 2) [2010] NSWSC 835
Ying v Song [2011] NSWSC 618
Texts Cited: Practice Note SC Eq 7
Category: Costs
Parties: Keith Milton Smith (first Plaintiff)
Darren Robert Smith (second Plaintiff)
Colin William Edward Smith (Defendant)
Representation: Counsel:
Mr M Thompson (Plaintiffs)
Ms J Needham SC; Mr S Chapple (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiffs)
Robbins Watson Solicitors (Defendant)

File Number(s): 2010/426728

Judgment

The Background

HIS HONOUR: In this matter, I delivered reasons for judgment on 31 August 2011, the medium neutral citation of which is Smith & Anor v Smith [2011] NSWSC 938. In those reasons, I found that each of the Plaintiffs was entitled to a family provision order by way of lump sum. The amount I ordered to be paid to each was $77,500.

In exercising my discretion on the nature and…

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 Smith (No 2)

Details

AGLC: Smith v Smith (No 2) [2011] NSWSC 1105
Case: [2011] NSWSC 1105
Decision Date: 12 October 2011

CaseChat Overview and Summary

In the case of Smith v Smith (No 2), the plaintiffs, who are the daughters of the deceased, brought an action against the defendant, who is their brother. They sought to set aside a will on the basis of undue influence. The case was heard in the Supreme Court of New South Wales. The plaintiffs did not achieve a result more favourable than the defendant's offer made in accordance with the provisions of Calderbank. The court had to decide whether the Calderbank offer was effective in determining the costs of the proceedings.

The central issue before the court was whether the Calderbank offer was effective in determining the costs of the proceedings. The court noted that the offer was made in writing and was specific in its terms. The plaintiffs did not accept the offer, but they did not achieve a result more favourable than the offer. The court had to determine whether the Calderbank offer was effective in determining the costs of the proceedings, and whether the plaintiffs were entitled to costs on the basis of their failure to achieve a more favourable result.

The court found that the Calderbank offer was effective in determining the costs of the proceedings. The court noted that the offer was made in accordance with the provisions of Calderbank, and that the plaintiffs did not achieve a result more favourable than the offer. The court held that the plaintiffs were not entitled to costs on the basis of their failure to achieve a more favourable result. The court held that the defendant was entitled to costs on an indemnity basis.

The court ordered that the defendant was entitled to costs on an indemnity basis. The court held that the plaintiffs were not entitled to costs on the basis of their failure to achieve a more favourable result than the Calderbank offer. The court held that the Calderbank offer was effective in determining the costs of the proceedings. The court ordered that the defendant was entitled to costs on an indemnity basis, and that the plaintiffs were not entitled to costs.

Orders