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
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
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)…
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.
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Details
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.