Walker v Harwood

Case [2017] NSWCA 228

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Walker v Harwood [2017] NSWCA 228
Hearing dates:20 June 2017
Decision date: 07 September 2017
Before: Basten JA at [1];
Macfarlan JA at [37];
Payne JA at [73]
Decision:

(1)   Grant the applicants leave to appeal from the orders made in the Equity Division on 25 November 2016.

 

(2)   Allow the appeal.

 

(3)   Set aside orders 3 and 4 made in the Court below and in lieu thereof order that:

 

(3)   The costs of the proceedings up to and including 10am on 23 May 2016 be paid out of the estate of the deceased on an indemnity basis.

 

(4)   The defendants pay the costs of the plaintiff from 10am on 23 May 2016 on an indemnity basis.

 (4)   No order as to the costs of the parties in this Court, so that each party must bear their or her own costs.
Catchwords:

COSTS – Calderbank offers – respondent made a Calderbank offer on terms less favourable to the respondent than the result the respondent obtained by judgment – whether it was unreasonable for the applicants to reject the Calderbank offer – whether the respondent’s costs should be paid by the applicants on the indemnity basis from the day after the date of expiration of the Calderbank offer

 

COSTS – offers of compromise – application of r 42.14 Uniform Civil Procedure Rules 2005 – circumstances in which a court should exercise its discretion to “order otherwise”

  COSTS – probate actions – exceptions to the principle that “costs follow the event”
Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6 Div 1, s 98
Succession Act 2006 (NSW), Pt 3.2
Supreme Court Rules 1970 (NSW), Pt 22, Pt 52 r 17
Trustee Act 1925 (NSW), s 63
Uniform Civil Procedure Rules 2005 (NSW) rr 20.26. 42.1, 42.14
Cases Cited: Banks v Goodfellow (1870) LR 5 QB 549
Barakat v Bazdarova [2012] NSWCA 140
Bull v Felton (1941) 66 CLR 295
Calderbank v Calderbank [1975] 3 WLR 586
Estate Sue [2016] NSWSC 721
Graham v Kahler (17 July 1991, unrep; BC 9101779)
Houatchanthara v Bednarczyk [1996] NSWCA 253
Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721
Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344
Morgan v Johnson (1998) 44 NSWLR 578
New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100
Phillips v Phillips (No 3) [2017] NSWSC 409
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Re Hodges (1988) 14 NSWLR 698
Revie v Druitt [2005] NSWSC 965
Shorten v Shorten (No 2) [2003] NSWCA 60
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Texts Cited: G E Dal Pont and Mackie, Law of Succession, (2013, Butterworths)
Category:Principal judgment
Parties: David Channon Walker (First Applicant)
Christopher Channon Walker (Second Applicant)
Jay Lily Harwood (Respondent)
Representation:

Counsel:
L Ellison SC (Applicants)
J Needham SC / R Bianchi (Respondent)

  Solicitors:
E H Tebbutt &…

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AGLC
Walker v Harwood [2017] NSWCA 228
Case
[2017] NSWCA 228
Decision Date

CaseChat Overview and Summary

In *Walker v Harwood*, the applicants sought leave to appeal against orders made in the Equity Division concerning the costs of probate proceedings. The dispute centred on whether the applicants had unreasonably rejected a *Calderbank* offer made by the respondent, and consequently, whether the applicants should be ordered to pay the respondent's costs on an indemnity basis from a specified date.

The primary legal issues before the Court of Appeal were whether the applicants' rejection of the *Calderbank* offer was unreasonable, and if so, whether the court should exercise its discretion under rule 42.14 of the *Uniform Civil Procedure Rules 2005* to order the applicants to pay the respondent's costs on an indemnity basis from the day after the offer's expiry. The court also considered the general principles regarding costs in probate actions, specifically the exceptions to the rule that costs follow the event.

The Court of Appeal allowed the appeal, finding that the applicants' rejection of the *Calderbank* offer was not unreasonable in the circumstances. The court set aside the original orders and substituted new orders regarding the costs of the proceedings. The costs of the proceedings up to 10 am on 23 May 2016 were ordered to be paid out of the estate of the deceased on an indemnity basis. From 10 am on 23 May 2016, the defendants were ordered to pay the costs of the plaintiff on an indemnity basis. No order was made as to the costs of the appeal itself, meaning each party was to bear their own costs in the Court of Appeal.

Orders

Orders of the court

(1) Grant the applicants leave to appeal from the orders made in the Equity Division on 25 November 2016.

(2) Allow the appeal.

(3) Set aside orders 3 and 4 made in the Court below and in lieu thereof order that:

(3) The costs of the proceedings up to and including 10am on 23 May 2016 be paid out of the estate of the deceased on an indemnity basis.

(4) The defendants pay the costs of the plaintiff from 10am on 23 May 2016 on an indemnity basis.

(4) No order as to the costs of the parties in this Court, so that each party must bear their or her own costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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