Farley v Farley [1999] NSWSC 376

Farley v Farley [1999] NSWSC 376

Although Wayne Lance Farley failed to respond to the Calderbank letter, that failure was not determinative because the proceedings involved discretionary Family Provision Act costs considerations, Jeanette Bertha Farley would in any event have needed to institute proceedings to enforce her entitlement to retain the house property, Wayne Lance Farley's claim was not without merit, and he had a significant intestacy entitlement. Indemnity costs were therefore inappropriate. However, making no order as to costs would significantly erode the benefit to which Jeanette Bertha Farley was entitled, so costs were ordered on the party and party basis.

Jurisdiction
Australia
Judgment Date
23 April 1999
Procedural Posture
Costs Argument in Family Provision Act and Intestacy Proceedings Concerning the Estate of the Late Lance Robertson Farley / Post Judgment Costs Submissions Following Reserved Judgment Delivered on 14 April 1999
Outcome
Indemnity costs refused; no-order-as-to-costs application refused; costs ordered on the party and party basis, with no order for the costs of the costs applications heard on 23 April 1999.
Legal Topics
['family Provision' 'intestacy' 'calderbank Letter' 'indemnity Costs' 'party and Party Costs']
['succession' 'equity' 'costs'] ['family Provision' 'intestacy' 'calderbank Letter' 'indemnity Costs' 'party and Party Costs']

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Procedural Posture

Costs Argument in Family Provision Act and Intestacy Proceedings Concerning the Estate of the Late Lance Robertson Farley / Post Judgment Costs Submissions Following Reserved Judgment Delivered on 14 April 1999

Legal Issues

  1. 1 ["Whether Jeanette Bertha Farley's costs should be paid by Wayne Lance Farley on the indemnity basis because Wayne Lance Farley did not respond to or accept offers in a Calderbank letter." 'Whether there should be no order as to costs so that each party bears his or her own costs.' 'Whether costs should instead be paid on the party and party basis.']

Ratio Decidendi

Although Wayne Lance Farley failed to respond to the Calderbank letter, that failure was not determinative because the proceedings involved discretionary Family Provision Act costs considerations, Jeanette Bertha Farley would in any event have needed to institute proceedings to enforce her entitlement to retain the house property, Wayne Lance Farley's claim was not without merit, and he had a significant intestacy entitlement. Indemnity costs were therefore inappropriate. However, making no order as to costs would significantly erode the benefit to which Jeanette Bertha Farley was entitled, so costs were ordered on the party and party basis.

Court Disposition

Indemnity costs refused; no-order-as-to-costs application refused; costs ordered on the party and party basis, with no order for the costs of the costs applications heard on 23 April 1999.

Orders

  • ['Orders as set forth in the judgment of 14 April 1999, adding to order 2 in each proceedings the words "such costs to be on the party and party basis".' "No order in respect to the costs of today's applications, to the intent that each party will bear his, or her, own costs thereof."]