Vaughan v Hoskovich - [2010] NSWSC 1459

CITATION: Vaughan v Hoskovich [2010] NSWSC 1459

HEARING DATE(S): 21 July 2010

JUDGMENT DATE :
21 July 2010

JURISDICTION: 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 1146

PARTIES: Plaintiff: Janet Louise Vaughan
Defendant: Pauline Hoskovich

FILE NUMBER(S): SC 2009/301042

COUNSEL: Plaintiff: L Ellison SC
Defendant: P Blackburn-Hart SC

SOLICITORS: 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…

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 Vaughan v Hoskovich

Details

AGLC: Vaughan v Hoskovich [2010] NSWSC 1459
Case: [2010] NSWSC 1459
Decision Date: 21 July 2010

CaseChat Overview and Summary

The matter of Vaughan v Hoskovich came before the court in relation to an application to set aside costs orders in probate proceedings. The plaintiff, Vaughan, sought to have the costs orders set aside on the basis that the defendant, Hoskovich, had rejected offers of compromise made by Vaughan. Specifically, the plaintiff argued that indemnity costs should be awarded from the date of the offers of compromise. The court had to determine whether the offers of compromise, which were not made under Part 20, Division 4 of the Uniform Civil Procedure Rules, could still result in an award of indemnity costs. This was because the offers were not exclusive of costs.

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