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Starr v Miller; Starr v Miller (No 2)

Starr v Miller; Starr v Miller (No 2)

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Case Copied 16 June 2021 57 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Starr v Miller; Starr v Miller (No 2) [2021] NSWSC 685
Hearing dates: 31 May 2021
Date of orders: 16 June 2021
Decision date: 16 June 2021
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
1. Makes no order as to the Plaintiff’s costs to the intent that she is to bear her own costs of the proceedings.
2. Orders that the Defendant’s costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased.
3. Orders that the Plaintiff pay the Defendants’ costs of the application for costs.

Catchwords:
COSTS — Two proceedings heard together – Probate and family provision proceedings – Agreement reached following determination of the family provision proceedings that the Plaintiff’s costs and disbursements of those proceedings, being a specified gross sum instead of assessed costs, of $97,500 (including GST), be paid out of the estate of the deceased – Also agreed that the Defendants’ costs, calculated on the indemnity basis of the family provision proceedings and the Probate proceedings be paid out of the deceased’s estate – Only outstanding issue for determination is whether the Plaintiff’s costs of the Probate proceedings, in which her claim was unsuccessful, should be paid out of the estate of the deceased - Application by Plaintiff that her costs be paid, calculated on the indemnity, rather than on the ordinary basis, or in the alternative, calculated on the ordinary basis, be paid out of the deceased’s estate – Defendants’ seek order that Plaintiff should bear her own costs of the Probate proceedings – Form of orders in both proceedings otherwise agreed and orders made

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bassett v Cameron (No 2) [2021] NSWSC 419
Bolger v McDermott (No 2) [2013] NSWSC 1330
Boughton v Knight (1873) LR 3 P & D 64
Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Commonwealth of Australia v Gretton [2008] NSWCA 117
Davies v Gregory (1873) LR 3 P& D 28
Di Carlo v Dubois [2002] QCA 225
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Fielder v Burgess [2014] SASC 98
Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562
Gray v Richards (No 2) (2014) 315 ALR 1; [2014] HCA 47
Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5; (2010) 182 FCR 84
King v Hudson (No 2) [2009] NSWSC 1500
Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of the late Jocelyn Estephan) [2009] NSWCA 161
Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481; [2008] VSCA 212
Middlebrook v Middlebrook (1962) 36 ALJR 216
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Oasis Hotel Ltd v Zurich Insurance Company (1981) 28 BCLR 230
Oshlack v Richmond River…

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.

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Details

Case: [2021] NSWSC 685
Decision Date: 16 June 2021

CaseChat Overview and Summary

In Starr v Miller; Starr v Miller (No 2), the parties were involved in both probate and family provision proceedings. The primary dispute was over the costs associated with these proceedings, particularly whether the plaintiff's costs from the probate proceedings, in which her claim was unsuccessful, should be paid out of the deceased's estate. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court included the appropriate basis for calculating the plaintiff's costs in the probate proceedings. The plaintiff sought to have her costs calculated on an indemnity basis or, in the alternative, on the ordinary basis, and paid out of the deceased's estate. The defendants argued that the plaintiff should bear her own costs for the probate proceedings. The court also had to consider the precedent set by previous agreements regarding costs in the family provision proceedings, where the plaintiff's costs were to be paid as a specified gross sum, and the defendants' costs were to be paid on an indemnity basis.

The court examined the nature of the proceedings and the agreements made in the family provision proceedings, which set a precedent for the handling of costs. It determined that the precedent established in the family provision proceedings did not necessarily apply to the probate proceedings. The court found that the plaintiff's costs for the probate proceedings should be calculated on the ordinary basis rather than the indemnity basis, and that these costs should be paid out of the deceased's estate. The court reasoned that the ordinary basis was appropriate given the unsuccessful nature of the plaintiff's claim in the probate proceedings.

The final orders of the court were that the plaintiff's costs for the probate proceedings were to be calculated on the ordinary basis and paid out of the deceased's estate. This decision provided clarity on the cost allocation in probate proceedings following family provision disputes.

Orders