Smith & Anor v Smith (No 2) [2011] NSWSC 1105

Smith & Anor v Smith (No 2) [2011] NSWSC 1105

The offers made by the Defendant were either not effective offers of compromise under the UCPR due to inclusion of terms as to costs being payable out of the estate, or were not sufficiently clear, or were incapable of acceptance by one Plaintiff alone. The Plaintiffs were not unreasonable in failing to accept the Calderbank offer, given lack of clarity as to security and timing, and the state of disclosure regarding the estate. Accordingly, the overall justice of the case warranted that the Plaintiffs' ordinary costs (other than specific costs of the notice of motion and argument as to costs) be paid out of the estate.

Parties
Plaintiff: Keith Milton Smith; Plaintiff: Darren Robert Smith; Defendant: Colin William Edward Smith
Jurisdiction
Australia
Judgment Date
12 October 2011
Procedural Posture
Family Provision/estate Claim Costs Determination / Post Judgment Determination of Costs
Outcome
Plaintiffs' ordinary costs (excluding specified hearings) paid out of estate; each party to bear their own costs of the Defendant's notice of motion of 31 August 2011 and the costs hearing; possession proceedings discontinued with no order as to costs; lump sum provisions for Plaintiffs; orders as set out in full in...
Legal Topics
Family Provision Orders, Costs, Offers of Compromise, Calderbank Offers
Succession Law Civil Procedure Family Provision Orders Costs Offers of Compromise Calderbank Offers

Case Brief

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Parties

Keith Milton Smith

Plaintiff

Darren Robert Smith

Plaintiff

Colin William Edward Smith

Defendant

Procedural Posture

Family Provision/estate Claim Costs Determination / Post Judgment Determination of Costs

Legal Issues

  1. 1 Who should bear the costs of the proceedings involving a family provision claim under the Succession Act 2006 after offers of compromise and Calderbank offers by the Defendant were not accepted by the Plaintiffs; whether the offers were effective under the Uniform Civil Procedure Rules 2005; and whether the Plaintiffs were unreasonable in not accepting the offers.

Ratio Decidendi

The offers made by the Defendant were either not effective offers of compromise under the UCPR due to inclusion of terms as to costs being payable out of the estate, or were not sufficiently clear, or were incapable of acceptance by one Plaintiff alone. The Plaintiffs were not unreasonable in failing to accept the Calderbank offer, given lack of clarity as to security and timing, and the state of disclosure regarding the estate. Accordingly, the overall justice of the case warranted that the Plaintiffs' ordinary costs (other than specific costs of the notice of motion and argument as to costs) be paid out of the estate.

Court Disposition

Plaintiffs' ordinary costs (excluding specified hearings) paid out of estate; each party to bear their own costs of the Defendant's notice of motion of 31 August 2011 and the costs hearing; possession proceedings discontinued with no order as to costs; lump sum provisions for Plaintiffs; orders as set out in full in...

Orders

  • Provision for each Plaintiff in the sum of $77,500 be made out of the estate of the deceased.
  • Plaintiffs' costs on the ordinary basis of the proceedings, other than the Defendant's Notice of Motion (31 August 2011) and the costs hearing, to be paid out of the deceased's estate.