CITATION: Vaughan v Hoskovich (No. 2) [2010] NSWSC 835 HEARING DATE(S): 21 July 2010
JUDGMENT DATE :
21 July 2010JURISDICTION: 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 1146PARTIES: Plaintiff: Janet Louise Vaughan
Defendant: Pauline HoskovichFILE NUMBER(S): SC 2009/301402 COUNSEL: Plaintiff: L Ellison SC
Defendant: P Blackburn-Hart SCSOLICITORS: 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.…
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- Case
- [2010] NSWSC 835
- Decision Date
CaseChat Overview and Summary
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.
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