Ray v Greenwell [2009] NSWSC 1197

Ray v Greenwell [2009] NSWSC 1197

Although the Plaintiff's failure to accept the Defendant's offers of compromise engaged rule 42.15A because the provision obtained was no more favourable than the offers, the Court considered the Plaintiff's financial circumstances and the nature of family provision costs. It would have otherwise ordered against requiring the Plaintiff to pay the Defendant's costs, but the Defendant sought only that the Plaintiff receive no costs and pay none of the Defendant's costs. In the circumstances, justice was adequately served by varying the order so the Defendant's indemnity costs were paid from the notional estate and the Plaintiff bore her own costs.

Jurisdiction
Australia
Judgment Date
29 October 2009
Procedural Posture
Family Provision Proceedings Costs Ruling / Relisted Argument as to Costs After Substantive Orders
Outcome
Order 3 made on 11 September 2009 was varied.
Legal Topics
['family Provision Proceedings' 'offers of Compromise' 'non Acceptance of Offer of Compromise' 'indemnity Costs' 'notional Estate']
['costs' 'succession'] ['family Provision Proceedings' 'offers of Compromise' 'non Acceptance of Offer of Compromise' 'indemnity Costs' 'notional Estate']

Case Brief

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Procedural Posture

Family Provision Proceedings Costs Ruling / Relisted Argument as to Costs After Substantive Orders

Legal Issues

  1. 1 ['Whether the costs order made on 11 September 2009 should be varied after argument on costs.' "Whether the Plaintiff's non-acceptance of the Defendant's offers of compromise should lead to the automatic costs consequences under rule 42.15A of the Uniform Civil Procedure Rules 2005." "Whether the Court should otherwise order in the circumstances of family provision proceedings and the Plaintiff's financial circumstances."]

Ratio Decidendi

Although the Plaintiff's failure to accept the Defendant's offers of compromise engaged rule 42.15A because the provision obtained was no more favourable than the offers, the Court considered the Plaintiff's financial circumstances and the nature of family provision costs. It would have otherwise ordered against requiring the Plaintiff to pay the Defendant's costs, but the Defendant sought only that the Plaintiff receive no costs and pay none of the Defendant's costs. In the circumstances, justice was adequately served by varying the order so the Defendant's indemnity costs were paid from the notional estate and the Plaintiff bore her own costs.

Court Disposition

Order 3 made on 11 September 2009 was varied.

Orders

  • ['I order that Order 3 made by me on 11 September 2009 be varied to read: 3. I order that the costs of the Defendant on the indemnity basis be paid out of the notional estate of the Deceased, and that there be no order in respect to the costs of the Plaintiff, to the intent that she will bear her own costs of the...