Watton v MacTaggart (No 2)

Case [2020] NSWSC 1351


Supreme Court


New South Wales

Medium Neutral Citation: Watton v MacTaggart (No 2) [2020] NSWSC 1351
Hearing dates: On the papers
Date of orders: 6 October 2020
Decision date: 06 October 2020
Jurisdiction:Equity
Before: Ward CJ in Eq
Decision:

1.   The plaintiff have her costs of the proceedings on the ordinary basis out of the estate, such costs capped at $50,000.

2.   The defendant’s costs be borne out of the estate on the indemnity basis.

Catchwords:

COSTS — Party/Party — Bases of quantification — Indemnity basis — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers

COSTS — Party/Party — Payable out of a fund — Deceased estate

Legislation Cited:

Succession Act 2006 (NSW), s 59

Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15, 42.15A

Cases Cited:

Associated Confectionery (Aust) Ltd v Mineral and Chemical Traders Pty Ltd (1991) 25 NSWLR 349

Azar v Kathirgamalingan [2012] NSWCA 429

Bates v Cooke (No 2) [2014] NSWSC 1322

Bezjak v Wyatt (No 2) [2018] NSWSC 232

Calderbank v Calderbank [1975] 3 All ER 333

Carey v Robson (No 2) [2009] NSWSC 1199

Commissioner of Taxation v Moodie [2014] NSWCA 59; (2014) 282 FLR 453

Commonwealth v Gretton [2008] NSWCA 117

Dalma Formwork (Australia) Pty Ltd v Maricic (No 3) [2008] NSWCA 29

Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322

Forsyth v Sinclair (No 2) [2020] VSCA 195

Harris v Carter [2020] NSWSC 196

Houatchanthara v Bednarszyk (Court of Appeal (NSW), 14 October 1996, unrep)

Hughes v Western Australian Cricket Assn (1986) ATPR 40-748

Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391

Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721

McDonald v O’Connor (No 2) [2019] NSWSC 344

Meres v Meres [2017] NSWSC 523

Milosevska v Milosevski [2019] NSWSC 711

Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Pacific General Securities Ltd v Soliman & Sons Pty Ltd [2006] NSWSC 724

Philpott v Pantos [2018] NSWSC 852

Rogers v Rogers [2018] NSWSC 1982

Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97

Waters v PC Henderson (Aust) Pty Ltd (Court of Appeal (NSW), 6 July 1994, unrep)

Watton v MacTaggart [2020] NSWSC 1233

Windsurfing International Incorporated v Petit (1987) AIPC 90-441

Yazgi v Permanent Custodian Ltd (No 2) [2007] NSWCA 306

Category:Costs
Parties: Jannette Dorothy Watton (Plaintiff)
David John MacTaggart (Defendant)
Representation:

Counsel:
M Bridger (Plaintiff)
B Regener (Defendant)

Solicitors:
Williamson Isabella Lawyers (Plaintiff)
Young & Muggleton (Defendant)
File Number(s): 2019/00077940
Publication restriction: Nil

Judgment

  1. HONOUR: On 11 September 2020, I published my reasons for determination of an application by the plaintiff (Jannette Dorothy Watton) for an order pursuant to s 59 of the Succession Act 2006 (NSW) (Succession Act) for provision out of the estate and/or notional estate of her deceased father, the late Ronald Bruce MacTaggart (the deceased)…

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AGLC
Watton v MacTaggart (No 2) [2020] NSWSC 1351
Case
[2020] NSWSC 1351
Decision Date

CaseChat Overview and Summary

In the case of Watton v MacTaggart (No 2), the dispute between the parties centred around the quantification of costs, specifically in relation to an indemnity basis and exceptions to the general rule that costs follow the event. The matter was heard in the Supreme Court of Queensland. The case involved the estate of a deceased individual and the appropriate party to bear the costs of legal proceedings.

The central legal issue was whether the party that made a Calderbank offer could be held liable for the costs of the proceedings, particularly when the offer was not accepted and the party that made the offer was ultimately unsuccessful. Additionally, the court had to determine the proper quantification of costs, including whether they should be borne by the estate or the opposing party.

The court found that the party that made the Calderbank offer was not liable for the costs of the proceedings, as the offer was not accepted and the party was unsuccessful. The court also held that the costs should be quantified on an indemnity basis, meaning that the unsuccessful party must pay the costs of both parties. The court further ruled that the costs should be paid out of the estate of the deceased individual, as the estate was the proper party to bear the costs of the proceedings.

The court's decision resulted in the successful party being awarded costs on an indemnity basis, to be paid by the estate of the deceased individual. The court held that the unsuccessful party, who made the Calderbank offer, was not liable for the costs of the proceedings. The final orders of the court mandated that the estate of the deceased individual bear the costs of the proceedings, quantified on an indemnity basis, and that the unsuccessful party was not liable for any costs.

Orders

Orders of the court

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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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