Grimmond v Simmons [2021] NSWSC 1104

Grimmond v Simmons [2021] NSWSC 1104

The plaintiff was not entitled to a costs order because the proceedings were resolved without a contested hearing, the consent orders appointing an independent third party funded by the plaintiff did not amount to capitulation by the first defendant or establish that the plaintiff was almost certain to obtain letters of administration, and although the first defendant's conduct was somewhat unhelpful and not entirely reasonable, it was not sufficiently unreasonable to justify a costs order against her.

Jurisdiction
Australia
Judgment Date
31 August 2021
Procedural Posture
Costs Application in Equity Proceedings Relating to Administration of a Deceased Estate / Plaintiff's Notice of Motion for Costs After Substantive Claims Were Resolved by Consent Orders Appointing an Independent Administrator
Outcome
Plaintiff's notice of motion dismissed with no order as to costs of the proceedings.
Legal Topics
['party/party Costs' "court's Discretion as to Costs" 'settled Proceedings Without Hearing on the Merits' 'substituted Service' 'appointment of Administrator of Deceased Estate']
['costs' 'succession' 'probate and Administration' 'civil Procedure'] ['party/party Costs' "court's Discretion as to Costs" 'settled Proceedings Without Hearing on the Merits' 'substituted Service' 'appointment of Administrator of Deceased Estate']

Case Brief

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Procedural Posture

Costs Application in Equity Proceedings Relating to Administration of a Deceased Estate / Plaintiff's Notice of Motion for Costs After Substantive Claims Were Resolved by Consent Orders Appointing an Independent Administrator

Legal Issues

  1. 1 ['Whether the plaintiff should recover his costs after the proceedings were resolved by consent orders without a contested hearing on the merits.' 'Whether the consent orders amounted to a substantial victory for the plaintiff or showed that he was almost certain to have succeeded at a contested hearing.' 'Whether the first defendant acted so unreasonably in the conduct of the proceedings that a costs order should be made against her.']

Ratio Decidendi

The plaintiff was not entitled to a costs order because the proceedings were resolved without a contested hearing, the consent orders appointing an independent third party funded by the plaintiff did not amount to capitulation by the first defendant or establish that the plaintiff was almost certain to obtain letters of administration, and although the first defendant's conduct was somewhat unhelpful and not entirely reasonable, it was not sufficiently unreasonable to justify a costs order against her.

Court Disposition

Plaintiff's notice of motion dismissed with no order as to costs of the proceedings.

Orders

  • ["The Plaintiff's Notice of Motion filed on 14 April 2021 be dismissed with no order as to costs." 'No order as to costs of the proceedings, with the intent that each party is to bear their own costs.']