Wardle v Wardle (No. 2) - [2021] NSWSC 1663

Supreme Court

New South Wales

Medium Neutral Citation: Wardle v Wardle (No. 2) [2021] NSWSC 1663
Hearing dates: 17 December 2021
Date of orders: 20 December 2021
Decision date: 20 December 2021
Jurisdiction: Equity
Before: Slattery J
Decision:
Plaintiff’s costs capped at $120,000. Defendant’s costs not capped. Plaintiff awarded almost two-thirds of his costs, being $75,000. Defendant’s solicitor not able to recover costs more than $80,000 inclusive of counsel’s fees and other disbursements, pending the outcome of any investigation by the NSW Law Society into the matters referred by the Court.

Catchwords:
COSTS – Family Provision – Costs-capping – competing claims by two adult children for further provision out of the estate of their deceased mother – where the plaintiff had success in the proceedings in claiming on behalf of the estate an interest in property in the name of the defendant and was given further provision out of the estate with a legacy of $75,000 – where the deceased’s estate is minimal, as a result of the conveyance of her principal asset to the defendant in which the defendant was living – whether it is appropriate for the Court to make costs-capping orders – when such an order may be made.
COSTS – Party/Party – Payable out of fund – Deceased estate – where the deceased’s estate is minimal – consideration of who is to bear costs – plaintiff successful on behalf of the estate but the defendant had a strong family provision claim – balancing the Court’s need to recognise the plaintiff’s success in the aspect of the case that took more than half the time in the proceedings, namely setting aside the property transfer to the defendant and the defendant’s otherwise strong family provision case – whether or not the defendant’s solicitor should recover costs more than a specified amount pending the outcome of any investigation by the Law Society into the matters referred by the Court in the first judgment.

Legislation Cited:
Civil Procedure Act 2005, ss 98(4)(c), 100
Probate and Administration Act1898

Cases Cited:
Cooper v Atkin [2020] NSWSC 828
Olsen v James [2020] NSWSC 1015
Permanent Trustee Co v Redman (1917) 17 SR (NSW) 353
Poche v Poche [2020] NSWSC 835
Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 3) [2018] NSWSC 60

Texts Cited:
Supreme Court Family Provision Practice Note No. SC EQ 7, clause 24

Category: Costs
Parties: Plaintiff: Roderick William Wardle
Defendant: Sharon Patricia Wardle
Representation:
Counsel:
Plaintiff: H. Morrison
Defendant: A. Blank
Solicitors:
Plaintiff: G. Smith, GHS Legal
Defendant: G. Pickering, Pickering Law

File Number(s): 2020/111791
Publication restriction: No

EX-TEMPORE Judgment

This is my second judgment in these proceedings. It deals with questions of costs. In the Court's first judgment the Court made orders declaring property in the defendant’s name to be part of a deceased estate but making orders for further provision out of the estate in favour of the defendant: Wardle v Wardle [2021] NSWSC 1529 (“the principal judgment”). Events, matters…

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 Wardle v Wardle (No. 2)

Details

AGLC: Wardle v Wardle (No. 2) [2021] NSWSC 1663
Case: [2021] NSWSC 1663
Decision Date: 20 December 2021

CaseChat Overview and Summary

The case of Wardle v Wardle (No. 2) dealt with the issue of costs and family provision claims in the context of a deceased estate. The plaintiff sought to claim further provision from the estate of their deceased mother, which was minimal due to the conveyance of the principal asset to the defendant. The plaintiff was successful in claiming an interest in property in the defendant's name and was granted a legacy of $75,000 from the estate. The court was required to determine whether it was appropriate to make costs-capping orders, given the minimal nature of the estate and the competing claims of the two adult children.

The legal issues before the court involved the allocation of costs in a family provision case where the estate was minimal and there were competing claims from the children. The court had to balance the need to recognise the plaintiff's success in setting aside the property transfer to the defendant with the defendant's strong family provision claim. Additionally, the court considered whether the defendant's solicitor should be allowed to recover costs more than a specified amount pending the outcome of any investigation by the Law Society into matters referred by the court in the first judgment.

The court found that it was appropriate to make costs-capping orders given the minimal nature of the estate. The court emphasised that while the plaintiff was successful in setting aside the property transfer and securing a legacy, the defendant had a strong family provision claim. The court recognised that the proceedings took significant time, with more than half dedicated to the property transfer issue. The court ordered that the defendant's solicitor should not recover costs exceeding a specified amount pending the outcome of any Law Society investigation. This decision aimed to balance the need for fair costs allocation with the competing interests of the parties.

The final orders included the costs-capping order and the limitation on the defendant's solicitor's costs recovery. The court's decision aimed to provide a fair outcome that recognised the plaintiff's success while also considering the defendant's strong family provision claim and the minimal nature of the estate.

Orders