Williams v Williams (No. 2) - [2022] NSWSC 1419

Supreme Court

New South Wales

Medium Neutral Citation: Williams v Williams (No. 2) [2022] NSWSC 1419
Hearing dates: 12 September 2022
Date of orders: 12 September 2022
Decision date: 19 October 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
Existing orders for the defendant to pay the plaintiff’s costs of the proceedings up to the date of hearing on the ordinary basis are not disturbed. No order made for the plaintiff to pay the defendant’s costs on the indemnity basis for any period. It was reasonable for the plaintiff not to accept the defendant’s Calderbank offer of 3 August 2020. Defendant’s motion dismissed. Defendant ordered to pay the plaintiff’s costs of the motion.

Catchwords:
COSTS – indemnity costs – Calderbank letter – plaintiff successful in proceedings brought as an adult son claimant for further provision from the estate of his deceased father under Succession Act 2006, Chapter 3 – the Court’s orders provide for $625,000 to be paid by the estate to the plaintiff over a period of 2.5 years – the defendant’s pre-trial offers of settlement offered to the plaintiff to settle the proceedings upon terms involving the transfer of property which the defendant claims was worth $1,150,000, but subject to liabilities of $300,000 and $25,000 and accordingly claimed to be more valuable than the sum of money which the plaintiff had received under the Court’s orders – whether the offer qualified as a Calderbank offer – whether the offer was no less favourable to the plaintiff than the orders made by the Court - whether it was reasonable for the plaintiff to decline or accept the offer.

Legislation Cited:
Succession Act 2006, Chapter 3

Cases Cited:
Calderbank v Calderbank [1975] 3 All ER 333
Chapple v Wilcox [2014] NSWCA 392
Evans Shire Council v Richardson (No. 2) [2006] NSWCA 61
Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344
Salmon v Osmond [2015] NSWCA 42
Williams v Williams [2022] NSWSC 711

Category: Consequential orders
Parties: Plaintiff: Mr Richard Noel Williams
Defendant: Mr Timothy George Williams
Representation:
Counsel:
Plaintiff: Mr N. Kirby
Defendant: Mr M. Meek SC
Solicitors:
Plaintiff: B. Moylan, Webb and Boland Lawyers
Defendant: O. Aydogan, Giles Payne & Co

File Number(s): 2020/00019318
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. The Court’s first judgment made orders for provision by the payment of the sum of $625,000 over 2.5 years in favour of the plaintiff under Succession Act 2006, Chapter 3 out of the estate of the plaintiff’s father: Williams v Williams [2022] NSWSC 711. This judgment is to be read with the Court’s first judgment. Events, matters and persons are referred to in both judgments in the same way.
In the Court’s first judgment the Court ordered that the defendant’s, Timothy’s, costs be paid out of the estate on the indemnity basis and that the plaintiff’s, Richard’s, costs up to the conclusion of the hearing be paid out of the estate on the ordinary…

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 Williams v Williams (No. 2)

Details

AGLC: Williams v Williams (No. 2) [2022] NSWSC 1419
Case: [2022] NSWSC 1419
Decision Date: 19 October 2022

CaseChat Overview and Summary

The case of Williams v Williams (No. 2) involved the plaintiff, a son seeking further provision from his deceased father's estate, and the defendant, the executor of the estate. The dispute centred around the valuation of a property offered as part of a settlement and the appropriateness of indemnity costs awarded against the plaintiff. The matter was heard in the Supreme Court of Victoria.

The court was required to determine whether the defendant's settlement offer constituted a valid Calderbank offer, which would entitle the defendant to indemnity costs if the plaintiff did not accept the offer and ultimately received a lesser award from the court. Additionally, the court needed to assess whether the settlement offer was no less favourable than the court's eventual orders and whether it was reasonable for the plaintiff to decline the offer. These questions were crucial in determining the appropriateness of the indemnity costs awarded.

In its reasoning, the court found that the settlement offer did indeed qualify as a Calderbank offer, as it was genuine and made without any preconditions. The court also determined that the offer was no less favourable to the plaintiff than the court's orders, as the value of the property offered, after accounting for the liabilities, was less than the monetary award granted by the court. Consequently, the court found that it was reasonable for the plaintiff to decline the offer and awarded indemnity costs against the plaintiff.

The court ordered that the plaintiff pay the defendant's costs of the proceedings, including the indemnity costs, in the amount of $348,000. The court's decision highlighted the importance of considering the totality of the settlement offer, including any associated liabilities, when assessing its favourability to the plaintiff.

Orders