Smith v Moore (No 2) [2020] NSWSC 1640

Smith v Moore (No 2) [2020] NSWSC 1640

Although the adverse financial impact of a costs order may be relevant in family provision proceedings, its relevance was limited here because the plaintiff's claim failed due to his failure to adduce evidence of all matters relevant to assessing the adequacy of provision under the will. The plaintiff and Ms Nelson gave false evidence about an alleged debt and withheld from the Court the true nature of their relationship of mutual financial support. That improper conduct caused the defendant to incur costs. Applying the overall justice of the case with liberality and discrimination, the defendant's ordinary costs, as well as the plaintiff's own costs, should be borne by the plaintiff...

Jurisdiction
Australia
Judgment Date
18 November 2020
Procedural Posture
Family Provision Proceedings; Costs / Costs Determined on the Papers After Dismissal of the Plaintiff's Claim
Outcome
The plaintiff is to pay the defendant's costs on the ordinary basis; the balance of the defendant's costs is to be paid out of the estate; no order is made as to the plaintiff's costs.
Legal Topics
['costs Discretion' 'costs Following the Event' 'costs Out of Deceased Estate' 'unsuccessful Family Provision Claimant' 'improper Conduct and False Evidence' 'impecuniosity']
['costs' 'family Provision' 'succession'] ['costs Discretion' 'costs Following the Event' 'costs Out of Deceased Estate' 'unsuccessful Family Provision Claimant' 'improper Conduct and False Evidence' 'impecuniosity']

Case Brief

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Procedural Posture

Family Provision Proceedings; Costs / Costs Determined on the Papers After Dismissal of the Plaintiff's Claim

Legal Issues

  1. 1 ["Whether the unsuccessful plaintiff in family provision proceedings should bear his own costs and pay the defendant executor's costs." "Whether the defendant's costs should be paid by the plaintiff on the ordinary basis or paid out of the estate on an indemnity basis." "Whether the plaintiff's financial position justified departure from the ordinary costs rule in family provision proceedings." "Whether the plaintiff's adducing of false evidence and withholding relevant evidence affected the costs discretion."]

Ratio Decidendi

Although the adverse financial impact of a costs order may be relevant in family provision proceedings, its relevance was limited here because the plaintiff's claim failed due to his failure to adduce evidence of all matters relevant to assessing the adequacy of provision under the will. The plaintiff and Ms Nelson gave false evidence about an alleged debt and withheld from the Court the true nature of their relationship of mutual financial support. That improper conduct caused the defendant to incur costs. Applying the overall justice of the case with liberality and discrimination, the defendant's ordinary costs, as well as the plaintiff's own costs, should be borne by the plaintiff...

Court Disposition

The plaintiff is to pay the defendant's costs on the ordinary basis; the balance of the defendant's costs is to be paid out of the estate; no order is made as to the plaintiff's costs.

Orders

  • ["No order as to the plaintiff's costs of the proceeding, with the intention that he will bear his own costs." "The plaintiff is to pay the defendant's costs of the proceeding on the ordinary basis." "The balance of the defendant's costs of the proceeding, that is, the difference between the costs payable by the...