Lewis v Lewis (No 2) [2021] NSWCA 259

Lewis v Lewis (No 2) [2021] NSWCA 259

Peter's motion sought a supplementary order as to where he could recover his solicitor-client costs, not a re-agitation of the rejected claim for indemnity party-party costs. The order was justified for the same reasons as the unchallenged corresponding order made by the primary judge: Peter's defence benefited the estate, and the estate should pay his solicitor-client costs with the Administrator subrogated to Peter's party-party costs entitlement against David. However, the Court declined to include the additional wording that the payment be charged against David's entitlement, because it went beyond the primary judge's order and could create uncertainty.

Jurisdiction
Australia
Judgment Date
26 October 2021
Procedural Posture
Costs / Notice of Motion for Supplementary Costs Order Determined on the Papers After Appeal and Cross Appeal Were Dismissed
Outcome
Peter was substantially successful on the notice of motion; supplementary costs orders were made.
Legal Topics
['supplementary Costs Orders' 'solicitor Client Costs' 'subrogation to Costs Order' 'costs Out of Estate' 'uniform Civil Procedure Rules R 36.16']
['civil Procedure' 'costs' 'probate'] ['supplementary Costs Orders' 'solicitor Client Costs' 'subrogation to Costs Order' 'costs Out of Estate' 'uniform Civil Procedure Rules R 36.16']

Case Brief

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Procedural Posture

Costs / Notice of Motion for Supplementary Costs Order Determined on the Papers After Appeal and Cross Appeal Were Dismissed

Legal Issues

  1. 1 ["Whether the Court should make a further order that Peter's costs of the appeal and cross-appeal be paid out of the estate of the late Pamela Lewis, with the Administrator subrogated to Peter's entitlement under the existing costs order." "Whether UCPR r 36.16 permitted the further costs order sought after the Court's orders of 6 August 2021." "Whether the order should include wording charging the payment against David's entitlement as a beneficiary of the estate." "Whether the costs of Peter's notice of motion should be included in Peter's costs of the appeal."]

Ratio Decidendi

Peter's motion sought a supplementary order as to where he could recover his solicitor-client costs, not a re-agitation of the rejected claim for indemnity party-party costs. The order was justified for the same reasons as the unchallenged corresponding order made by the primary judge: Peter's defence benefited the estate, and the estate should pay his solicitor-client costs with the Administrator subrogated to Peter's party-party costs entitlement against David. However, the Court declined to include the additional wording that the payment be charged against David's entitlement, because it went beyond the primary judge's order and could create uncertainty.

Court Disposition

Peter was substantially successful on the notice of motion; supplementary costs orders were made.

Orders

  • ["Order that Peter's costs of the appeal and cross-appeal be paid out of the estate of the late Pamela Lewis, on terms that upon payment the Administrator of the estate shall be subrogated to Peter's entitlement under order 3 made on 6 August 2021." "Order that Peter's costs of the notice of motion filed on 20...