CITATION: Vaughan v Hoskovich [2010] NSWSC 1459 HEARING DATE(S): 21 July 2010
JUDGMENT DATE :
21 July 2010JURISDICTION: Equity JUDGMENT OF: White J EX TEMPORE JUDGMENT DATE: 21 July 2010 DECISION: 1. Plaintiff’s application to set aside the orders of 30/6/10 refused.
2. Costs of today are costs in the proceedings and abide the costs orders made on 30/6/10.CATCHWORDS: COSTS – application to set aside costs orders in probate proceedings – where defendant rejected offers of compromise made by plaintiff – whether to award indemnity costs from date of offers – offer of compromise not made under Part 20, Division 4 of Uniform Civil Procedure Rules because not exclusive of costs – where questions raised by proceedings finely balanced and deceased effectively caused litigation by not making will – defendant did not act unreasonably in not accepting Calderbank offers – costs orders not set aside CATEGORY: Consequential orders CASES CITED: Saul v Lin [2007] NSWSC 782
Short v Crawley (No. 42) [2009] NSWSC 1110
Short v Crawley (No. 43) [2009] NSWSC 1274
Calderbank v Calderbank [1976] Fam 93
Trustee for the Salvation Army (NSW) Property Trust t/as Salvation Army v Becker (No 2) [2007] NSWCA 194
Trustee for the Salvation Army (NSW) Property Trust t/as Salvation Army v Becker (No 2)
Vaughan v Hoskovich [2010] NSWSC 706
Becker v Public Trustee of New South Wales [2006] NSWSC 1146PARTIES: Plaintiff: Janet Louise Vaughan
Defendant: Pauline HoskovichFILE NUMBER(S): SC 2009/301042 COUNSEL: Plaintiff: L Ellison SC
Defendant: P Blackburn-Hart SCSOLICITORS: Plaintiff: Greg Alfonzetti, Solicitor
Defendant: George Bassil & Associates
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
WHITE J
Wednesday, 21 July 2010
2009/301042 Janet Louise Vaughan v Pauline Hoskovich (No. 2)
JUDGMENT
1 HIS HONOUR: On 30 June 2010 I made declarations and orders in these proceedings including an order that the costs of the plaintiff on the indemnity basis, and the costs of the defendant on the ordinary basis, be paid out of the estate. Mr Ellison SC, who appears for the plaintiff, submits that that order should be set aside and instead it should be ordered that the defendant pay the plaintiff's costs on the indemnity basis from 5 May 2009 and otherwise there should be no order as to costs.
2 The orders as to costs made on 30 June 2010 were made after counsel for the parties had made submissions at the hearing as to the costs order each party would seek if she was successful or unsuccessful. No reference was made during the course of submissions that the costs orders to be made might be affected by any offer of compromise under the Uniform Civil Procedure Rules or any Calderbank offer.
3 The present application of the plaintiff is based upon two offers: the first on 5 May 2009, which the plaintiff contends is an offer of compromise under the Rules attracting the consequences in r 42.14; and the second being a Calderbank offer of 1 October 2009. There…
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- Vaughan v Hoskovich [2010] NSWSC 1459
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- [2010] NSWSC 1459
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CaseChat Overview and Summary
The court examined whether the questions raised by the proceedings were finely balanced and whether the deceased had effectively caused the litigation by not making a will. The court found that the defendant did not act unreasonably in not accepting the Calderbank offers of compromise. Given that the issues in the proceedings were finely balanced and that the deceased had not made a will, the court concluded that the defendant's decision not to accept the offers was not unreasonable. Consequently, the court determined that the costs orders should not be set aside.
In light of the court's findings, the application to set aside the costs orders was dismissed. The court ruled that the defendant was not liable to pay the plaintiff's costs of the application and from the date of the offers of compromise. The decision underscores the importance of the nature of the offers of compromise and the circumstances of the case in determining whether indemnity costs are appropriate.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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