Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Squire v Squire (No 2) [2019] NSWCA 120 Hearing dates: On the papers Date of orders: 22 May 2019 Decision date: 22 May 2019 Before: Macfarlan JA
Meagher JA
Simpson AJADecision: (1) Appeal allowed.
(2) Set aside orders 1, 2, 3 and 4 made by Kunc J on 4 May 2018 and entered on 7 May 2018, this order not to affect the costs order made by Hallen J on 14 November 2016.
(3) Order that the amount held by the respondent in the ING account, and representing the deceased’s share of the proceeds of sale of the Baulkham Hills property, together with accrued interest, be designated as notional estate of the late Richard Squire.
(4) Order pursuant to Succession Act 2006 (NSW), s 59 that an amount of $85,000 be paid from that fund to each of the appellants, together with interest should either amount not be paid before 10 June 2019. Any such interest is to be calculated at the same rate as the rate at which interest is currently accruing on the amount held in the ING account.
(5) The appellants’ costs of the proceedings below, assessed on the ordinary basis up to and including 14 November 2016 and on an indemnity basis thereafter, and subject to an overall cap of $50,000, are to be paid out of the notional estate.
(6) The appellants’ costs of the appeal, assessed on the ordinary basis and capped at $31,000 are to be paid out of the notional estate.
(7) The respondent, if otherwise qualified, is to have a certificate under the Suitors’ Fund Act 1951 (NSW).Catchwords: COSTS – appeals – appellants made Calderbank offer in relation to proceedings at first instance – offer rejected – no separate offer made in relation to costs of appeal – costs of appeal determined by reference to outcome of appeal – appellants’ recoverable costs capped Legislation Cited: Succession Act 2006 (NSW), s 59
Suitors’ Fund Act 1951 (NSW)Cases Cited: Bathurst Regional Council v Thompson (No 2) [2012] NSWCA 420
Gray v Hobson (No 2) [2018] NSWCA 131
McKeith v Royal Bank of Scotland Group PLC (No 2) [2016] NSWCA 260
Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368Category: Costs Parties: Paul Francis Aubrey Squire (First Appellant)
Claire Louise Isobel Beech (Second Appellant)
Corinne Ann Squire in her capacity as executrix of the estate of the late Richard Squire (Respondent)Representation: Counsel:
Solicitors:
AG Martin, MA Tovey (Appellants)
P Glissan (Respondent)
Branston Neville Lawyers (Appellants)
Roderick Storie Solicitors (Respondent)
File Number(s): 2018/170879 Publication restriction: N/A Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity
- Citation:
- [2018] NSWSC 594
- Date of Decision:
- 4 May 2018
- Before:
- Kunc J
- File Number(s):
- 2016/122471
Judgment
-
THE COURT: In its judgment delivered on 30 April 2019 (Squire v Squire [2019] NSWCA 90)…
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- AGLC
- Squire v Squire (No 2) [2019] NSWCA 120
- Case
- [2019] NSWCA 120
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the orders made by Kunc J should be set aside, and how the costs of both the proceedings at first instance and the appeal should be determined, particularly in light of a Calderbank offer made by the appellants in relation to the original proceedings.
The Court of Appeal allowed the appeal, setting aside certain orders of Kunc J but preserving a prior costs order made by Hallen J. The court declared that the respondent's holding of the deceased's share of property sale proceeds in an ING account constituted notional estate. Pursuant to section 59 of the *Succession Act 2006* (NSW), the court ordered that $85,000 be paid from this notional estate to each appellant. Crucially, the court addressed costs by ordering that the appellants' costs of the proceedings below be paid out of the notional estate, assessed on an ordinary basis up to 14 November 2016 and on an indemnity basis thereafter, with an overall cap of $50,000. The appellants' costs of the appeal were also to be paid out of the notional estate, assessed on an ordinary basis and capped at $31,000. The respondent was also granted a certificate under the *Suitors’ Fund Act 1951* (NSW).
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside orders 1, 2, 3 and 4 made by Kunc J on 4 May 2018 and entered on 7 May 2018, this order not to affect the costs order made by Hallen J on 14 November 2016.
(3) Order that the amount held by the respondent in the ING account, and representing the deceased’s share of the proceeds of sale of the Baulkham Hills property, together with accrued interest, be designated as notional estate of the late Richard Squire.
(4) Order pursuant to Succession Act 2006 (NSW), s 59 that an amount of $85,000 be paid from that fund to each of the appellants, together with interest should either amount not be paid before 10 June 2019. Any such interest is to be calculated at the same rate as the rate at which interest is currently accruing on the amount held in the ING account.
(5) The appellants’ costs of the proceedings below, assessed on the ordinary basis up to and including 14 November 2016 and on an indemnity basis thereafter, and subject to an overall cap of $50,000, are to be paid out of the notional estate.
(6) The appellants’ costs of the appeal, assessed on the ordinary basis and capped at $31,000 are to be paid out of the notional estate.
(7) The respondent, if otherwise qualified, is to have a certificate under the Suitors’ Fund Act 1951 (NSW).
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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