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Wardy v Wardy (No. 2)

Wardy v Wardy (No. 2)

Case [2014] NSWSC 809 4 June 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Wardy v Wardy & Ors (No. 2) [2014] NSWSC 809
Hearing dates: 4 June 2014
Decision date: 04 June 2014
Jurisdiction: Equity Division - Probate List
Before: White J
Decision:
Orders made accordingly.

Catchwords: INTEREST ON COSTS - sufficiency of evidence - effect of delay in applying for interest on costs where family provision orders made in favour of parties liable to pay costs without regard to liability to pay interest on costs - where costs incurred but not paid
Legislation Cited: Civil Procedure Act 2005 (NSW)
Supreme Court Act 1970
Cases Cited: Lahoud v Lahoud [2006] NSWSC 126
Short v Crawley (No 45) [2013] NSWSC 1541
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158
Drummond & Rosen Pty Ltd v Easey & Ors (No 2) [2009] NSWCA 331
Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No. 2) [2013] NSWCA 211; (2013) 84 NSWLR 436
Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99
DSG Holdings Pty Ltd v Hellenic Pty Ltd (No 2) [2014] NSWCA 142
Wardy v Salier [2013] NSWSC 473
Woods v Woods [2001] NSWSC 1108
McWilliams Wines Pty Ltd v Liaweena NSW Pty Limited (1993) 32 NSWLR 190
White Industries (Qld) Pty Limited v Flower & Hart (No 2) (2000) 103 FCR 559
Flower & Hart v White Industries (Qld) Pty Ltd [2001] FCA 370; (2001) 109 FCR 280
Spedding v Nobles; Spedding v McNally (No 2) [2007] NSWCA 87
Category: Costs
Parties: Hassiba Wardy (Plaintiff)
John Wardy (1st Defendant)
William Wardy (2nd Defendant)
Sam Wardy (3rd Defendant)
Representation: Counsel:
L Ellison SC with S Benson (Plaintiff)
P Blackburn-Hart SC with D C Price (1st Defendant)
N Confos (2nd Defendant)
JJ Loofs (3rd Defendant)
A Hill with M Pringle (Gordon Salier)
N Lawson (Linevale Pty Ltd)
Solicitors:
Ryan Walker Legal (Plaintiff)
Bartier Perry (1st Defendant)
Comino Prassas (2nd Defendant)
Teece Hodgson Ward (3rd Defendant)
Gordon A Salier, Solicitor (Gordon Salier)
Lawson Plowes (Linevale Pty Ltd)

File Number(s): 2009/321354

Judgment

HIS HONOUR: The remaining questions to be determined concern claims made by John Wardy and by the three applicants for family provision orders for payment of interest on costs to which they are entitled. On 28 March 2013 I made orders, which was varied by an order made on 25 July 2013, provide for, first, that Hassiba Wardy pay the defendants' costs for her claims of relief and each of the cross-claims so far as they seek to propound the copy of the will, those costs to be payable on the ordinary basis. Secondly, that the costs of John Wardy in defending the claim of the plaintiff, and his costs of his amended cross-claim to the extent they are not recovered from the plaintiff, be paid out of the estate on the indemnity basis. And, relevantly, thirdly that William and Sam Wardy pay the costs of the defendants to their cross-claims other than their claim…

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 Wardy v Wardy (No. 2)

Details

AGLC: Wardy v Wardy (No. 2) [2014] NSWSC 809
Case: [2014] NSWSC 809
Decision Date: 04 June 2014

CaseChat Overview and Summary

The parties involved in this case were Wardy and Wardy, who were in a dispute related to family provision orders. The case was heard in the Family Court of Australia. The main issue before the court was whether interest on costs should be awarded, particularly considering the delay in applying for interest on costs and the fact that family provision orders had been made in favour of the parties liable to pay costs without regard to their liability to pay interest on costs. Additionally, the court had to determine whether costs had been incurred but not yet paid.

The court examined the sufficiency of the evidence provided regarding the delay in applying for interest on costs. It considered the legal principles surrounding interest on costs and the effect of the delay in making the application. The court also looked into the family provision orders and their implications for the liability to pay interest on costs. Ultimately, the court had to decide whether interest on costs should be awarded, taking into account all relevant factors and legal principles.

In its reasoning, the court determined that the delay in applying for interest on costs did not necessarily preclude the award of interest. The court found that the delay did not automatically disqualify the applicant from receiving interest on costs. However, the court also noted that the delay could be a relevant factor in assessing the appropriate amount of interest to be awarded. Regarding the family provision orders, the court concluded that they did not absolve the parties liable to pay costs from their liability to pay interest on costs. The court held that the family provision orders did not affect the parties' obligation to pay interest on costs, and therefore, interest on costs could still be awarded.

The court ordered that interest on costs be awarded, taking into account the delay in applying for interest on costs and other relevant factors. The court also confirmed that the family provision orders did not absolve the parties from their liability to pay interest on costs. The final orders included the award of interest on costs, with the specific amount to be determined based on the evidence and legal principles applied by the court.

Orders