Haertsch v Whiteway (No 2) [2020] NSWCA 287

Haertsch v Whiteway (No 2) [2020] NSWCA 287

Although the first respondent's ultimately unsuccessful family provision claim was not wholly without merit and her circumstances justified some departure from ordinary costs consequences for the proceedings below, her unsuccessful estoppel claim was ill conceived and caused about 25% of the costs below. The appeal was necessary, and the cross appeal on quantum was optimistic, so the first respondent was required to pay the appellant's costs of the appeal and cross appeal on the ordinary basis and 25% of the first instance costs on the ordinary basis. The appellant was entitled to recoup the unrecovered balance of properly incurred costs on an indemnity basis from Stephne Whiteway's estate.

Jurisdiction
Australia
Judgment Date
16 November 2020
Procedural Posture
Costs in Family Provision Proceedings / Costs Determination on the Papers After Appeal and Cross Appeal
Outcome
Costs orders made; first respondent to pay appellant's costs of the appeal and cross appeal and 25% of the first and second defendants' costs below, with unrecovered indemnity costs payable from Stephne Whiteway's estate and no order as to Jane French's costs.
Legal Topics
['costs Follow the Event' 'costs Discretion' 'family Provision Costs' 'notional Estate' 'unsuccessful Family Provision Applicant' 'indemnity From Estate']
['costs' 'family Provision' 'succession'] ['costs Follow the Event' 'costs Discretion' 'family Provision Costs' 'notional Estate' 'unsuccessful Family Provision Applicant' 'indemnity From Estate']

Case Brief

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Procedural Posture

Costs in Family Provision Proceedings / Costs Determination on the Papers After Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether to depart from the general rule that costs follow the event in determining costs of the proceedings below and the appeal and cross appeal.' "Whether the unsuccessful first respondent should bear the appellant's costs or whether those costs should be paid out of Stephne Whiteway's estate." 'Whether any order should be made as to the costs of the second respondent, Jane French.' "Whether the appellant was entitled to recoup unrecovered costs on an indemnity basis from Stephne Whiteway's estate."]

Ratio Decidendi

Although the first respondent's ultimately unsuccessful family provision claim was not wholly without merit and her circumstances justified some departure from ordinary costs consequences for the proceedings below, her unsuccessful estoppel claim was ill conceived and caused about 25% of the costs below. The appeal was necessary, and the cross appeal on quantum was optimistic, so the first respondent was required to pay the appellant's costs of the appeal and cross appeal on the ordinary basis and 25% of the first instance costs on the ordinary basis. The appellant was entitled to recoup the unrecovered balance of properly incurred costs on an indemnity basis from Stephne Whiteway's estate.

Court Disposition

Costs orders made; first respondent to pay appellant's costs of the appeal and cross appeal and 25% of the first and second defendants' costs below, with unrecovered indemnity costs payable from Stephne Whiteway's estate and no order as to Jane French's costs.

Orders

  • ["First respondent pay the appellant's costs of the appeal and cross appeal, assessed on the ordinary basis." "First respondent (as plaintiff) pay 25% of the first and second defendants' costs of the proceedings below, assessed on the ordinary basis, with the intention that the parties otherwise bear their own...