Scott v Scott (No 2) [2022] NSWSC 914

Scott v Scott (No 2) [2022] NSWSC 914

The plaintiff was not entitled to indemnity costs. The purported formal offer of compromise was invalid because, in a family provision claim, it failed to specify the fund or part of the estate from which the proposed provision was to be made, a substantive requirement having regard to UCPR r 20.26 and Succession Act 2006, s 65. The informal offers did not justify indemnity costs because it was not demonstrated that their rejection was unreasonable, including because the plaintiff's case as it ultimately appeared at trial depended significantly on documents and evidence concerning the preparation of the will that had not then been produced or appreciated by the defendant's legal...

Jurisdiction
Australia
Judgment Date
08 July 2022
Procedural Posture
Family Provision Proceedings; Costs Application / Costs Determined on the Papers After Judgment on the Family Provision Application and Agreement on the Form of the Provision Order
Outcome
The plaintiff's application for indemnity costs was refused. Costs were awarded on the ordinary basis for the plaintiff, apart from the costs argument, and the defendant's costs were ordered to be paid on an indemnity basis out of the defendant's share of the estate.
Legal Topics
['family Provision' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'incidence of Costs on Estate' 'validity of Formal Offers in Family Provision Proceedings']
['succession' 'costs' 'civil Procedure'] ['family Provision' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'incidence of Costs on Estate' 'validity of Formal Offers in Family Provision Proceedings']

Case Brief

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Procedural Posture

Family Provision Proceedings; Costs Application / Costs Determined on the Papers After Judgment on the Family Provision Application and Agreement on the Form of the Provision Order

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to indemnity costs because the defendant failed to accept formal or informal offers to compromise the family provision proceedings.' "Whether the plaintiff's purported formal offer of compromise was effective under UCPR r 20.26 where it did not specify the part or parts of the estate from which the proposed further provision was to be provided." "Whether refusal of the plaintiff's informal offers was unreasonable for Calderbank costs purposes." "Whether the parties' costs should be paid out of the estate and, if so, from which share of the estate." "Whether alleged costs associated with preliminary relief, production of documents and the proposed cross-examination of the deceased's solicitor should affect the costs orders."]

Ratio Decidendi

The plaintiff was not entitled to indemnity costs. The purported formal offer of compromise was invalid because, in a family provision claim, it failed to specify the fund or part of the estate from which the proposed provision was to be made, a substantive requirement having regard to UCPR r 20.26 and Succession Act 2006, s 65. The informal offers did not justify indemnity costs because it was not demonstrated that their rejection was unreasonable, including because the plaintiff's case as it ultimately appeared at trial depended significantly on documents and evidence concerning the preparation of the will that had not then been produced or appreciated by the defendant's legal...

Court Disposition

The plaintiff's application for indemnity costs was refused. Costs were awarded on the ordinary basis for the plaintiff, apart from the costs argument, and the defendant's costs were ordered to be paid on an indemnity basis out of the defendant's share of the estate.

Orders

  • ["Order that the plaintiff's costs (apart from costs of the argument about the costs of the proceedings) be paid out of the defendant's share of the estate, on the ordinary basis." "Order that the defendant's costs of the proceedings be paid out of the defendant's share of the estate, on an indemnity basis."]