HILL v COPELAND [1999] NSWSC 632

HILL v COPELAND [1999] NSWSC 632

Because the proceedings had not been tried, it was inappropriate to determine the merits or the outcome of a hypothetical trial, and the Court could not determine whether the plaintiff reasonably commenced the proceedings given the unresolved conduct disentitling allegations. The 2nd defendant deliberately kept her poor financial position from the plaintiff and had delayed filing evidence, so she should not recover costs before the plaintiff could practically assess that position. However, once the mortgage became known in April 1999, a proper assessment by the end of April would have shown that the plaintiff should not proceed and should accept the offer made on 27 April 1999....

Jurisdiction
Australia
Judgment Date
28 June 1999
Procedural Posture
Family Provision Proceedings / Application by the Plaintiff at the Commencement of Hearing for Leave to Discontinue the Proceedings and for Costs Orders
Outcome
Leave granted to the plaintiff to discontinue the proceedings on terms; the plaintiff to pay the 2nd defendant's costs from 30 April 1999 on a party and party basis; the 1st defendant's indemnity costs may be paid or retained out of the estate.
Legal Topics
['discontinuance' 'costs on Discontinuance' 'family Provision Claim' 'notional Estate' 'executor Distribution With Notice of Possible Claim']
['practice and Procedure' 'succession' 'costs'] ['discontinuance' 'costs on Discontinuance' 'family Provision Claim' 'notional Estate' 'executor Distribution With Notice of Possible Claim']

Case Brief

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Procedural Posture

Family Provision Proceedings / Application by the Plaintiff at the Commencement of Hearing for Leave to Discontinue the Proceedings and for Costs Orders

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to discontinue the proceedings.' "Whether leave to discontinue should be on terms that the 2nd defendant pay the plaintiff's and the 1st defendant's costs on an indemnity basis." "Whether the plaintiff should pay the 2nd defendant's costs." "Whether the 1st defendant's costs should be paid out of the estate or by the plaintiff." 'Whether, on a costs application after discontinuance, the Court should determine the merits of the family provision claim or only whether the proceedings were reasonably commenced and defended.']

Ratio Decidendi

Because the proceedings had not been tried, it was inappropriate to determine the merits or the outcome of a hypothetical trial, and the Court could not determine whether the plaintiff reasonably commenced the proceedings given the unresolved conduct disentitling allegations. The 2nd defendant deliberately kept her poor financial position from the plaintiff and had delayed filing evidence, so she should not recover costs before the plaintiff could practically assess that position. However, once the mortgage became known in April 1999, a proper assessment by the end of April would have shown that the plaintiff should not proceed and should accept the offer made on 27 April 1999....

Court Disposition

Leave granted to the plaintiff to discontinue the proceedings on terms; the plaintiff to pay the 2nd defendant's costs from 30 April 1999 on a party and party basis; the 1st defendant's indemnity costs may be paid or retained out of the estate.

Orders

  • ["I give leave to the plaintiff to discontinue the proceedings on terms: (a) That no further proceedings be brought by the plaintiff based upon the cause of action propounded in the present proceedings. (b) That the plaintiff pay the 2nd defendant's costs on and from 30 April 1999 on a party and party basis." "The...