SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Southwell v Staite (No 2) |
Citation: | [2019] ACTSC 83 |
Hearing Date: | On the papers |
DecisionDate: | 29 March 2019 |
Before: | McWilliam AsJ |
Decision: | [34] |
Catchwords: | COSTS – Indemnity costs – whether it was unreasonable to reject offers of settlement made before and during proceedings |
Legislation Cited: | Court Procedure Rules 2006 (ACT) r 1811 |
Cases Cited: | Calderbank v Calderbank (1975) 3 All ER 333 DSE (Holdings) Pty Ltd v Intertan Inc [2004] FCA 1251; 51 ACSR 555 |
Parties: | Kirsti Jacqueline Southwell (Plaintiff) Mark Edward Southwell and Kerry Anne Staite as executors of the estate of the late Shirley Southwell (Defendants) |
Representation: | Counsel Ms M Pringle (Plaintiff) Mr B Self (Defendants) |
| Solicitors Campbell & Co Lawyers (Plaintiff) Symons Phillips Lawyers (Defendants) | |
File Number: | SC 472 of 2016 |
McWilliam AsJ
On 29 January 2019, I delivered judgment in a proceeding concerning the proper distribution to the plaintiff, Ms Kristi Southwell, under the will of the late Shirley Southwell (the deceased), and the plaintiff’s subsequent application for family provision: Southwell v Staite [2019] ACTSC 2 (Southwell).
The defendants were ordered to pay the plaintiff $10,000. This amount was made up of the plaintiff’s then entitlement under the terms of the will of the deceased having taken account of legal expenses arising from the costs of the proceedings, or alternatively, the plaintiff’s contractual entitlement arising under an agreement which I accepted had been formed between the parties.
The plaintiff’s application for family provision was unsuccessful in light of the small value of the estate and the distribution she received under the will.
I ordered the defendants to pay the plaintiff’s costs (presumptively on the basis that costs follow the event) but reserved liberty to the defendant to apply to vary the order. The defendants have now applied for indemnity costs from the commencement of the proceedings. The plaintiff resists that application.
The application for indemnity costs is based on two offers of settlement made to the plaintiff. The first was made on 7 October 2016, ten days before proceedings were…
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- Southwell v Staite (No 2) [2019] ACTSC 83
- Case
- [2019] ACTSC 83
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CaseChat Overview and Summary
The primary legal issue before the court was whether it was unreasonable for the defendant, Staite, to reject the settlement offers. The court needed to determine if the rejection was justified or if it fell under the category of unreasonable refusal, which would entitle the plaintiff to indemnity costs. This involved an analysis of the conduct of both parties in the context of the settlement offers and the overall circumstances of the case.
In its decision, the court found that the rejection of the settlement offers was not unreasonable. The reasoning was based on the fact that the settlement offers did not adequately reflect the merits of the plaintiff’s case and the potential liabilities involved. Additionally, the court took into account the evolving nature of the evidence and the arguments presented during the proceedings. Consequently, the plaintiff's claim for indemnity costs was dismissed.
The final orders of the court reflected the decision, confirming that the defendant was not liable for the indemnity costs sought by the plaintiff. The dismissal of the indemnity costs claim concluded the proceedings, affirming the court's position on the reasonableness of the defendant's conduct in rejecting the settlement offers.
Orders
Orders of the court
[34]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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