Andrew Sinphet MATHER by his tutor Kerrie Patricia MATHER v Christopher Andrew MATHER (2) [2012] NSWSC 1264

Andrew Sinphet MATHER by his tutor Kerrie Patricia MATHER v Christopher Andrew MATHER (2) [2012] NSWSC 1264

The defendants' valid offer of compromise of a $1,200,000 legacy was more favourable to the plaintiff than the $1,100,000 legacy ordered after trial, so UCPR r 42.15A applied. The plaintiff did not establish exceptional circumstances warranting departure from the rule: the less than 10% difference, tutor status, family provision uncertainty, and evidentiary inquiries did not justify ordering otherwise. The defendants were therefore entitled to indemnity costs from the day after the offer.

Jurisdiction
Australia
Judgment Date
24 October 2012
Procedural Posture
Costs Determination in Family Provision Proceedings / Costs Orders After Judgment Given on 20 September 2012
Outcome
Costs ordered in favour of the defendants in accordance with the consequences of the unaccepted offer of compromise.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'uniform Civil Procedure Rules R 42.15 A' 'exceptional Circumstances' 'family Provision Claim']
['costs' 'succession'] ['offer of Compromise' 'indemnity Costs' 'uniform Civil Procedure Rules R 42.15 A' 'exceptional Circumstances' 'family Provision Claim']

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Procedural Posture

Costs Determination in Family Provision Proceedings / Costs Orders After Judgment Given on 20 September 2012

Legal Issues

  1. 1 ["Whether the defendants' offer of compromise engaged Uniform Civil Procedure Rules r 42.15A because the judgment was as favourable to the defendants, or more favourable, than the offer." 'Whether exceptional circumstances existed warranting departure from the usual costs consequences under r 42.15A.' "Whether matters including the less than 10% difference between the offer and judgment, the plaintiff's tutor status, the discretionary nature of family provision claims, and late-served evidence justified ordering otherwise."]

Ratio Decidendi

The defendants' valid offer of compromise of a $1,200,000 legacy was more favourable to the plaintiff than the $1,100,000 legacy ordered after trial, so UCPR r 42.15A applied. The plaintiff did not establish exceptional circumstances warranting departure from the rule: the less than 10% difference, tutor status, family provision uncertainty, and evidentiary inquiries did not justify ordering otherwise. The defendants were therefore entitled to indemnity costs from the day after the offer.

Court Disposition

Costs ordered in favour of the defendants in accordance with the consequences of the unaccepted offer of compromise.

Orders

  • ["The plaintiff's costs be paid out of the estate of the deceased up to 27 August 2012 and thereafter the plaintiff's tutor pay the defendants' costs on an indemnity basis." "The defendants' costs on the indemnity basis be paid out of the estate of the deceased."]