Sherborne Estate (No 2): Vanvalen & Anor v Neaves & Anor; Gilroy v Neaves & Anor [2005] NSWSC 1003

Sherborne Estate (No 2): Vanvalen & Anor v Neaves & Anor; Gilroy v Neaves & Anor [2005] NSWSC 1003

A costs capping order will not be made post-trial when no detailed particulars are provided by the applicant for capping and where plaintiffs' costs, while disproportionate, may be assessed by a costs assessor under the Legal Profession Act. Calderbank offer rejection by an FPA applicant was not unreasonable given uncertainty of such claims, and, considering the unsuccessful applicant's modest means and the borderline nature of her case, the overall justice warrants no order for costs against her.

Jurisdiction
Australia
Judgment Date
10 October 2005
Procedural Posture
Family Provision Application and Costs Determination / Post Trial Costs Judgment
Outcome
Costs capping order refused; costs of successful plaintiffs to be assessed; no costs order against unsuccessful plaintiff.
Legal Topics
['family Provision Act Claims' 'costs Capping Orders' 'indemnity Costs' 'costs Assessment' 'notional Estate Under Succession Law']
['succession Law' 'civil Procedure'] ['family Provision Act Claims' 'costs Capping Orders' 'indemnity Costs' 'costs Assessment' 'notional Estate Under Succession Law']

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Procedural Posture

Family Provision Application and Costs Determination / Post Trial Costs Judgment

Legal Issues

  1. 1 ["Whether to cap the successful plaintiffs' costs under CPA s.98(4)(c) or UCPR 42.4; whether an unsuccessful party can apply for a capping order against a successful party; whether indemnity costs should be ordered for rejection of a Calderbank offer; whether the unsuccessful plaintiff should pay defendants' costs or there should be departure from the usual costs order"]

Ratio Decidendi

A costs capping order will not be made post-trial when no detailed particulars are provided by the applicant for capping and where plaintiffs' costs, while disproportionate, may be assessed by a costs assessor under the Legal Profession Act. Calderbank offer rejection by an FPA applicant was not unreasonable given uncertainty of such claims, and, considering the unsuccessful applicant's modest means and the borderline nature of her case, the overall justice warrants no order for costs against her.

Court Disposition

Costs capping order refused; costs of successful plaintiffs to be assessed; no costs order against unsuccessful plaintiff.

Orders

  • ['In proceedings 1865/02, orders are made in terms of the Short Minutes of Order proposed by the plaintiffs.' 'In proceedings 1866/02, orders are made in terms of the Short Minutes of Order proposed by the plaintiff.' 'No costs capping order; costs of successful plaintiffs to be assessed under Legal Profession Act.'...