NSW Trustee and Guardian v Reading (No 2) [2021] NSWSC 1257

NSW Trustee and Guardian v Reading (No 2) [2021] NSWSC 1257

Because the Statement of Claim directly challenged Michael Reading's right to remain on the property, it was proper and necessary for him to file both a Defence and the First Cross-Claim in response. The plaintiff's discontinuance meant the proceedings ought not be further pursued, and the defendant should be compensated for the costs incurred in properly meeting the challenge. The Court also considered there was a valid argument that the plaintiff had no proper footing to commence possession proceedings when it did, and it would not be just or fair for the defendant's costs to be borne by the deceased's estate in which he was entitled to share.

Jurisdiction
Australia
Judgment Date
05 October 2021
Procedural Posture
Proceedings for Possession Concerning Deceased Estate Property; Procedural Ruling on Discontinuance and Costs / Determination of Orders and Costs Following Proposed Discontinuance of the Statement of Claim and First Cross Claim
Outcome
The proceedings on the Statement of Claim and the First Cross-Claim were dismissed, and the plaintiff was ordered to pay the defendant's costs without recourse to the deceased's estate.
Legal Topics
['discontinuance of Proceedings' 'costs on Discontinuance' 'cross Claims' 'possession Proceedings' 'life Interest or Right of Residence Under a Will']
['practice and Procedure' 'civil Procedure' 'succession and Estates'] ['discontinuance of Proceedings' 'costs on Discontinuance' 'cross Claims' 'possession Proceedings' 'life Interest or Right of Residence Under a Will']

Case Brief

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Procedural Posture

Proceedings for Possession Concerning Deceased Estate Property; Procedural Ruling on Discontinuance and Costs / Determination of Orders and Costs Following Proposed Discontinuance of the Statement of Claim and First Cross Claim

Legal Issues

  1. 1 ["Whether the proceedings on the Statement of Claim and First Cross-Claim should be disposed of following the plaintiff's proposed discontinuance." "Whether the plaintiff should pay the defendant's costs of both the Statement of Claim and the First Cross-Claim." "Whether the plaintiff should have recourse to the deceased's estate to pay the defendant's costs." 'Whether it was proper and necessary for the defendant to file the Cross-Claim in response to the Statement of Claim.']

Ratio Decidendi

Because the Statement of Claim directly challenged Michael Reading's right to remain on the property, it was proper and necessary for him to file both a Defence and the First Cross-Claim in response. The plaintiff's discontinuance meant the proceedings ought not be further pursued, and the defendant should be compensated for the costs incurred in properly meeting the challenge. The Court also considered there was a valid argument that the plaintiff had no proper footing to commence possession proceedings when it did, and it would not be just or fair for the defendant's costs to be borne by the deceased's estate in which he was entitled to share.

Court Disposition

The proceedings on the Statement of Claim and the First Cross-Claim were dismissed, and the plaintiff was ordered to pay the defendant's costs without recourse to the deceased's estate.

Orders

  • ['The proceedings of the Statement of Claim and the First Cross-Claim are dismissed.' "The plaintiff is to pay the costs of the defendant on the Statement of Claim and First Cross-Claim as agreed or assessed and the plaintiff not have recourse to the deceased's estate to pay such costs." 'The directions hearing...