EB v GB (No 3) [2023] NSWSC 514

EB v GB (No 3) [2023] NSWSC 514

The appropriate event was the dissolution of the legal basis on which the respondents purported to preclude the applicant's access to her father by reference to the appointment of enduring guardian and enduring power of attorney. The applicant succeeded in that respect, so costs followed the event. The Calderbank offer did not justify indemnity costs because, when it was made, it was not unreasonable for the respondents to reject it. The respondents did not prove that the applicant had no liability to her solicitors. A gross sum costs order was refused because the Court was not sufficiently confident it could fairly assess the amount and the respondents should not be deprived of ordinary...

Jurisdiction
Australia
Judgment Date
18 May 2023
Procedural Posture
Costs Application in Equity Proceedings Concerning a Notice of Motion for Access to the Applicant's Father in an Aged Care Home / On the Papers; Determination of Costs of the Notice of Motion After the Primary Judgment
Outcome
The respondents were ordered to pay the applicant's costs of the notice of motion filed on 24 June 2022 on the ordinary basis; indemnity costs and a gross sum costs order were not granted.
Legal Topics
['costs Following the Event' 'calderbank Offer' 'indemnity Costs' 'ordinary Basis Costs' 'gross Sum Costs Order' 'managed Person and Liability for Legal Costs' 'parens Patriae Jurisdiction']
['civil Procedure' 'costs' 'equity'] ['costs Following the Event' 'calderbank Offer' 'indemnity Costs' 'ordinary Basis Costs' 'gross Sum Costs Order' 'managed Person and Liability for Legal Costs' 'parens Patriae Jurisdiction']

Case Brief

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Procedural Posture

Costs Application in Equity Proceedings Concerning a Notice of Motion for Access to the Applicant's Father in an Aged Care Home / On the Papers; Determination of Costs of the Notice of Motion After the Primary Judgment

Legal Issues

  1. 1 ['What was the relevant event for the purpose of determining whether costs should follow the event.' 'Whether the applicant achieved practical success on the notice of motion.' "Whether rejection of the applicant's Calderbank offer warranted indemnity costs." 'Whether the applicant had accrued liability to her solicitors despite being a managed person under the NSW Trustee and Guardian Act 2009 (NSW).' 'Whether the Court should make a specified gross sum costs order instead of leaving costs to assessment.']

Ratio Decidendi

The appropriate event was the dissolution of the legal basis on which the respondents purported to preclude the applicant's access to her father by reference to the appointment of enduring guardian and enduring power of attorney. The applicant succeeded in that respect, so costs followed the event. The Calderbank offer did not justify indemnity costs because, when it was made, it was not unreasonable for the respondents to reject it. The respondents did not prove that the applicant had no liability to her solicitors. A gross sum costs order was refused because the Court was not sufficiently confident it could fairly assess the amount and the respondents should not be deprived of ordinary...

Court Disposition

The respondents were ordered to pay the applicant's costs of the notice of motion filed on 24 June 2022 on the ordinary basis; indemnity costs and a gross sum costs order were not granted.

Orders

  • ['The Court orders the respondents to pay to the applicant her costs of the notice of motion filed on 24 June 2022 on the ordinary basis.']