Ashton v Pratt No 2 [2015] NSWCA 134

Ashton v Pratt No 2 [2015] NSWCA 134

Because the children actively participated in the proceedings, filed and pursued a cross-appeal, supported the appellant, advanced additional submissions, and were unsuccessful on the underlying basis of their claim that Ms Ashton held Mr Pratt's promise as trustee for their benefit, none of the discretionary matters relied on justified departing from the usual rule that costs follow the event. The tutor was also liable because responsibility for costs is a purpose of appointing a tutor for persons under incapacity.

Jurisdiction
Australia
Judgment Date
21 May 2015
Procedural Posture
Costs / On the Papers; Application by the First Respondent for Costs of the Cross Appeal After Dismissal of the Appeal
Outcome
Cross-appeal dismissed.
Legal Topics
['costs Orders Against Children' 'costs Orders Against Tutors' 'costs Orders Against Joined Parties' 'costs Following the Event' 'joinder' 'cross Appeal']
['costs' 'civil Procedure' 'equity'] ['costs Orders Against Children' 'costs Orders Against Tutors' 'costs Orders Against Joined Parties' 'costs Following the Event' 'joinder' 'cross Appeal']

Case Brief

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Procedural Posture

Costs / On the Papers; Application by the First Respondent for Costs of the Cross Appeal After Dismissal of the Appeal

Legal Issues

  1. 1 ["Whether the second and third respondents and their tutor should pay the first respondent's costs of the cross-appeal." 'Whether the usual rule that costs follow the event should be displaced because the first respondent opposed joinder, because of the manner in which the children conducted the appeal, because of an analogy with probate costs principles, or because the tutor did not personally benefit from the proceedings.']

Ratio Decidendi

Because the children actively participated in the proceedings, filed and pursued a cross-appeal, supported the appellant, advanced additional submissions, and were unsuccessful on the underlying basis of their claim that Ms Ashton held Mr Pratt's promise as trustee for their benefit, none of the discretionary matters relied on justified departing from the usual rule that costs follow the event. The tutor was also liable because responsibility for costs is a purpose of appointing a tutor for persons under incapacity.

Court Disposition

Cross-appeal dismissed.

Orders

  • ['Cross-appeal dismissed.' "Order that the second and third respondents and their tutor, Liam Kelly, pay the first respondent's costs of the cross-appeal, excluding the costs of the motion filed on 23 October 2013 and determined on 18 November 2013."]