Watton v MacTaggart (No 2) [2020] NSWSC 1351

Watton v MacTaggart (No 2) [2020] NSWSC 1351

Because the plaintiff’s judgment was not more favourable than the defendant’s formal offer of compromise, special costs order could have applied under r 42.15 UCPR. However, owing to the close proximity between the offer and the judgment sum, the conditional nature and timing of the offer, and issues as to estate...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
06 October 2020
Procedural Posture
Family Provision; Equity / Post Judgment Determination of Costs
Outcome
Plaintiff’s costs on ordinary basis out of the estate, capped at $50,000; defendant’s indemnity costs out of the estate; otherwise, no further order.
Legal Topics
['costs' 'family Provision' 'offers of Compromise' 'indemnity Costs' 'party/party Costs']
['succession' 'equity'] ['costs' 'family Provision' 'offers of Compromise' 'indemnity Costs' 'party/party Costs']

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Procedural Posture

Family Provision; Equity / Post Judgment Determination of Costs

Legal Issues

  1. 1 ['What costs orders should be made following judgment in family provision proceedings where a r 20.26 UCPR offer of compromise was made but not accepted?' 'Whether the usual or special costs regime under r 42.15 UCPR should apply?' 'Whether alternative or additional apportionment is warranted for conduct during the hearing?']

Ratio Decidendi

Because the plaintiff’s judgment was not more favourable than the defendant’s formal offer of compromise, special costs order could have applied under r 42.15 UCPR. However, owing to the close proximity between the offer and the judgment sum, the conditional nature and timing of the offer, and issues as to estate assets and payment, the court ordered a cap on the plaintiff's recoverable costs from the estate at $50,000 (on the ordinary basis) and allowed the defendant’s indemnity costs from the estate, declining to apply the full special costs regime against plaintiff. No apportionment was made for the last day of hearing.

Court Disposition

Plaintiff’s costs on ordinary basis out of the estate, capped at $50,000; defendant’s indemnity costs out of the estate; otherwise, no further order.

Orders

  • ['The plaintiff have her costs of the proceedings on the ordinary basis out of the estate, such costs capped at $50,000.' "The defendant's costs be borne out of the estate on the indemnity basis."]