Vaughan v Hoskovich (No. 2) - [2010] NSWSC 835

CITATION: Vaughan v Hoskovich (No. 2) [2010] NSWSC 835

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: Application refused.

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
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 2009/301402

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

SOLICITORS: Plaintiff: Greg Alfonzetti, SolicitorDefendant: 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 is no dispute that the court has power to set aside the order as to costs. (See r 36.16(3) of the Uniform Civil Procedure Rules 2005 (NSW) and Saul v Lin [2007] NSWSC 782 at [13]; Short v Crawley (No.…

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: [2010] NSWSC 835
Decision Date: 21 July 2010

CaseChat Overview and Summary

The case of Vaughan v Hoskovich (No. 2) involved a dispute regarding the setting aside of costs orders in probate proceedings. The plaintiff, Vaughan, sought to set aside costs orders in relation to offers of compromise made by the defendant, Hoskovich. The proceedings arose from the refusal of Hoskovich to accept offers of compromise made by Vaughan. The primary focus of the court was to determine whether indemnity costs should be awarded from the date of the offers and whether the offers of compromise were valid under the relevant rules.

The legal issues central to the case were whether the offers of compromise made by Vaughan were governed by Part 20, Division 4 of the Uniform Civil Procedure Rules and whether indemnity costs should be awarded from the date of the offers. The court examined the nature of the offers and whether they were exclusive of costs, as required by the rules. Additionally, the court considered whether Hoskovich acted unreasonably in rejecting the offers and whether the deceased, by not making a will, effectively caused the litigation.

The court concluded that the offers of compromise were not made under Part 20, Division 4 of the Uniform Civil Procedure Rules because they were not exclusive of costs. The court found that the questions raised by the proceedings were finely balanced, and the deceased's failure to make a will effectively caused the litigation. Given these circumstances, the court held that Hoskovich did not act unreasonably in rejecting the Calderbank offers. Consequently, the costs orders were not set aside. The court found that there were no grounds to award indemnity costs from the date of the offers.

Orders