Samowitz v Wilson [2013] NSWSC 1194

Samowitz v Wilson [2013] NSWSC 1194

The Court declined to make a contrary costs order under UCPR r 42.19(2). A hearing would be required to determine whether the plaintiffs acted reasonably in commencing the proceedings, and in any event reasonableness alone was not sufficient to displace the prima facie rule that discontinuing plaintiffs pay the defendant's costs. The proceedings had no real purpose beyond obtaining an assessment of the defendant's current capacity, and the plaintiffs' later realisation that the evidence was insufficient to establish current incapacity was not a relevant supervening event justifying departure from r 42.19(2).

Jurisdiction
Australia
Judgment Date
30 August 2013
Procedural Posture
Equity Division Proceedings Concerning Declarations About Capacity to Revoke and Grant Powers of Attorney and Guardianship Instruments / Application by Plaintiffs for Leave to Discontinue Proceedings and for an Order That Each Party Pay Her Own Costs
Outcome
Leave granted to discontinue; plaintiffs ordered to pay the defendant's costs of the proceedings.
Legal Topics
['costs on Discontinuance' 'uniform Civil Procedure Rules 2005 R 42.19(2)' 'capacity to Revoke Enduring Power of Attorney' 'medical Evidence of Capacity']
['civil Procedure' 'costs' 'equity'] ['costs on Discontinuance' 'uniform Civil Procedure Rules 2005 R 42.19(2)' 'capacity to Revoke Enduring Power of Attorney' 'medical Evidence of Capacity']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Declarations About Capacity to Revoke and Grant Powers of Attorney and Guardianship Instruments / Application by Plaintiffs for Leave to Discontinue Proceedings and for an Order That Each Party Pay Her Own Costs

Legal Issues

  1. 1 ["Whether the Court should order otherwise under Uniform Civil Procedure Rules 2005 r 42.19(2) so that the plaintiffs would not pay the defendant's costs on discontinuance." 'Whether it was sufficient to depart from r 42.19(2) that the plaintiffs acted reasonably in commencing and continuing the proceedings.' "Whether the defendant's later capacity to execute a fresh power of attorney made the proceedings futile in a way justifying a different costs order."]

Ratio Decidendi

The Court declined to make a contrary costs order under UCPR r 42.19(2). A hearing would be required to determine whether the plaintiffs acted reasonably in commencing the proceedings, and in any event reasonableness alone was not sufficient to displace the prima facie rule that discontinuing plaintiffs pay the defendant's costs. The proceedings had no real purpose beyond obtaining an assessment of the defendant's current capacity, and the plaintiffs' later realisation that the evidence was insufficient to establish current incapacity was not a relevant supervening event justifying departure from r 42.19(2).

Court Disposition

Leave granted to discontinue; plaintiffs ordered to pay the defendant's costs of the proceedings.

Orders

  • ['Give leave to the plaintiffs to discontinue these proceedings and to file the notice of discontinuance in court.' "Order that the plaintiffs' notice of motion filed on 21 May 2013 be otherwise dismissed." "Order that the plaintiffs pay the defendant's costs of the proceedings." 'The court book and exhibits may be...