Salmon v Osmond (No 3) [2015] NSWCA 271

Salmon v Osmond (No 3) [2015] NSWCA 271

The motion was dismissed because the varied order 6 correctly reflected the Court's intention that Donna Maree Peters bear only the portion of the appellants' first instance costs attributable to her unsuccessful claim, assessed consistently with the primary judge's 20 per cent allocation, and the variation corrected an accidental omission under UCPR, r 36.17 rather than deciding an unresolved controversy. It would have been inconsistent with the Court's costs balance concerning Kerryn's partly successful claim to require Donna to bear the appellants' full costs of the trial.

Jurisdiction
Australia
Judgment Date
09 September 2015
Procedural Posture
Costs Ruling in Succession Proceedings / Notice of Motion on the Papers After Appeal Judgment and Variation Orders
Outcome
The appellants' notice of motion filed 4 June 2015 was dismissed with costs.
Legal Topics
['family Provision From Deceased Estate' 'costs of Unsuccessful and Partly Successful Claims' 'indemnity Costs After Offer of Compromise' 'accidental Omission in Orders' 'variation or Correction of Orders']
['succession' 'costs' 'civil Procedure'] ['family Provision From Deceased Estate' 'costs of Unsuccessful and Partly Successful Claims' 'indemnity Costs After Offer of Compromise' 'accidental Omission in Orders' 'variation or Correction of Orders']

Case Brief

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Procedural Posture

Costs Ruling in Succession Proceedings / Notice of Motion on the Papers After Appeal Judgment and Variation Orders

Legal Issues

  1. 1 ["Whether order 6, as varied, should be omitted from the Court's orders on the basis that it did not properly give effect to the Court's intention in the principal judgment." "Whether Donna Maree Peters should bear the whole of the appellants' costs at first instance or only the portion attributable to her unsuccessful claim." 'Whether the varied order was a permissible correction of an accidental omission under UCPR, r 36.17.' "Whether offers of compromise made to Kerryn Therese Osmond not previously brought to the Court's attention justified a different costs order."]

Ratio Decidendi

The motion was dismissed because the varied order 6 correctly reflected the Court's intention that Donna Maree Peters bear only the portion of the appellants' first instance costs attributable to her unsuccessful claim, assessed consistently with the primary judge's 20 per cent allocation, and the variation corrected an accidental omission under UCPR, r 36.17 rather than deciding an unresolved controversy. It would have been inconsistent with the Court's costs balance concerning Kerryn's partly successful claim to require Donna to bear the appellants' full costs of the trial.

Court Disposition

The appellants' notice of motion filed 4 June 2015 was dismissed with costs.

Orders

  • ["The appellants' notice of motion filed 4 June 2015 is dismissed with costs."]