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Wheatley v Lakshmanan (No 2)

Wheatley v Lakshmanan (No 2)

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Case Copied 28 June 2022 58 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wheatley v Lakshmanan (No 2) [2022] NSWSC 851
Hearing dates: On the papers
Date of orders: 28 June 2022
Decision date: 28 June 2022
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   The plaintiff be paid the net sum of $160,000 out of the estate of the late Dianne Victoria Lakshmanan as a capped and fixed amount towards her costs on a party/party basis (and taking into account the amount ordered by Hallen J to be paid by her to the defendants in October 2020).
2.   The first defendant, as executor, be entitled to recoup her costs of the proceedings out of the estate on the indemnity basis.
3.   There be no other order as to costs.

Catchwords:
COSTS — Succession — Where disproportionate costs incurred — Capping of costs — Consideration of Calderbank offers and claim for special costs orders

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 98
Evidence Act 1900 (NSW), s 136
Succession Act 2006 (NSW), ss 95, 99
Trustee Act 1925 (NSW), s 81
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1

Cases Cited:
AB v Curry (No 2) [2015] NSWSC 1209
Bates v Cooke (No 2) [2014] NSWSC 1322
Blendell v Byrne (No 2) [2019] NSWSC 798
Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Chapel Road Pty Ltd v Australian Securities and Investments Commission (No 11) [2014] NSWSC 636
Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398
Coote v Coote (No 2) [2021] NSWSC 461
Favotto Family Restaurants Pty Ltd v Chief Commissioner of State Revenue (NSW) (No 2) [2020] NSWSC 519
Haertsch v Whiteway (No 2) [2020] NSWCA 287
Hamod v New South Wales [2011] NSWCA 375
Hazeldene’s Chicken Farm Pty Ltd v WorkCover Authority (Vic) (No 2) (2005) 13 VR 435; [2005] VSCA 298
Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) [2015] NSWCA 208
King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204
Lowe v Lowe (No 3) [2015] NSWSC 1800
Magenta Nominees Pty Limited v Richard Ellis (WA) Pty Limited (Full Court of the Federal Court of Australia, 29 August 1995, unrep)
Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721
McGettigan v Coulter (No 2) [2021] NSWSC 1356
MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236; [1996] FCA 862
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Nadilo v Souris (No 2) [2019] NSWSC 246
Penfold v Predny [2016] NSWSC 472
Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121
Poche v Poche [2020] NSWSC 835
Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278
Purnell v Tindale [2020] NSWSC 746
Rakovich v Marszalek [2020] NSWSC 589
Schneider v Kemeny;…

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

Case: [2022] NSWSC 851
Decision Date: 28 June 2022

CaseChat Overview and Summary

The case of Wheatley v Lakshmanan (No 2) involved the parties in a dispute concerning succession and the allocation of estate costs. The Full Court of the Family Court of Australia was tasked with determining the appropriateness of capping costs in light of disproportionate expenditures incurred during the litigation process. The case also encompassed an evaluation of Calderbank offers and the request for special costs orders.

The central legal issues before the court involved the fairness and reasonableness of the costs incurred by the parties in the context of the overall estate. The court needed to consider whether the costs incurred were proportionate to the value of the estate and the nature of the dispute. Additionally, the court had to examine the relevance of Calderbank offers, which are formal offers made during litigation to resolve the dispute, and whether they should influence the determination of costs. The request for special costs orders also required scrutiny, as the court had to decide whether such orders were justified under the circumstances.

In reaching its decision, the court acknowledged that the costs incurred by the parties were indeed disproportionate to the value of the estate and the nature of the dispute. The court further noted that the Calderbank offers made by the parties were relevant in assessing the overall conduct of the litigation. However, the court determined that the making of these offers did not warrant a reduction in costs, as they were not made early enough in the proceedings to have a significant impact. The court also found that the request for special costs orders was not substantiated, as the circumstances did not warrant such an award. Consequently, the court decided to cap the costs at a level that was deemed reasonable and proportionate to the estate.

The final orders of the court included the capping of costs at a specified amount, reflecting the court's assessment of the reasonableness and proportionality of the costs incurred. The court also dismissed the request for special costs orders and found that the Calderbank offers did not warrant a reduction in costs. This decision highlights the importance of considering the overall conduct of the litigation and the timing of Calderbank offers when determining costs in succession disputes.

Orders