Liberty Teal Griffin (by her Tutor Shelley Candice Griffin) v David Raymond Coe (both in his capacity as Executor of the estate of the late Phillip Mark Griffin & in his personal capacity) (No. 2) [2012] NSWSC 1239

Liberty Teal Griffin (by her Tutor Shelley Candice Griffin) v David Raymond Coe (both in his capacity as Executor of the estate of the late Phillip Mark Griffin & in his personal capacity) (No. 2) [2012] NSWSC 1239

The Plaintiffs were required to pay the Second Defendant's costs of the re-opening application because they sought an indulgence, but only on the ordinary basis because some material was not previously available, some documents were probative, and there was no unreasonable behaviour or lack of diligence. The agreed costs were not ordered payable forthwith because the pre-probate and post-probate claims were not sufficiently discrete: the underlying factual matters would be the same if the proceedings continued against the Second Defendant.

Jurisdiction
Australia
Judgment Date
15 October 2012
Procedural Posture
Costs / Costs Determination Following Judgment on the Second Defendant's Notice of Motion for Summary Dismissal And/or Strike Out, and the Plaintiffs' Application for Leave to Re Open
Outcome
The Court made costs orders in favour of the Second Defendant on the ordinary basis and did not order the costs payable forthwith at this stage.
Legal Topics
['summary Dismissal' 'strike Out' 'leave to Re Open' 'indemnity Costs' 'costs Payable Forthwith' 'uniform Civil Procedure Rules R 42.7']
['civil Procedure' 'costs'] ['summary Dismissal' 'strike Out' 'leave to Re Open' 'indemnity Costs' 'costs Payable Forthwith' 'uniform Civil Procedure Rules R 42.7']

Case Brief

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Procedural Posture

Costs / Costs Determination Following Judgment on the Second Defendant's Notice of Motion for Summary Dismissal And/or Strike Out, and the Plaintiffs' Application for Leave to Re Open

Legal Issues

  1. 1 ["Whether the costs of the Plaintiffs' re-opening application should be paid on an indemnity basis" 'Whether agreed costs payable to the Second Defendant should be payable forthwith under r 42.7 UCPR' 'Whether the pre-probate and post-probate claims were sufficiently discrete for costs to be payable forthwith']

Ratio Decidendi

The Plaintiffs were required to pay the Second Defendant's costs of the re-opening application because they sought an indulgence, but only on the ordinary basis because some material was not previously available, some documents were probative, and there was no unreasonable behaviour or lack of diligence. The agreed costs were not ordered payable forthwith because the pre-probate and post-probate claims were not sufficiently discrete: the underlying factual matters would be the same if the proceedings continued against the Second Defendant.

Court Disposition

The Court made costs orders in favour of the Second Defendant on the ordinary basis and did not order the costs payable forthwith at this stage.

Orders

  • ["The Plaintiffs to pay the Second Defendant's costs of and incidental to the Second Defendant's Notice of Motion dated 15 February 2012." "The Plaintiffs to pay the Second Defendant's costs of and incidental to the Plaintiff's Notice of Motion dated 28 June 2012 (including the costs of and incidental to the mention...