Elix v Hill [2023] NSWSC 1017

Elix v Hill [2023] NSWSC 1017

Leave to discontinue was granted because the plaintiff wished to discontinue after reaching a settlement that gave her a greater share of the deceased's estate, which was the nature of the relief sought. The defendant's allegations did not justify indemnity costs because there had been no hearing on the merits and it was inappropriate to inquire into the merits for costs purposes. The defendant's repeated refusal to engage in mediation or alternative dispute resolution justified departing from the ordinary r 42.19 position, so each party was to bear their own costs.

Jurisdiction
Australia
Judgment Date
24 August 2023
Procedural Posture
Family Provision Proceedings in the Equity Succession & Probate List / Application for Leave to Discontinue Proceedings and Determination of Costs
Outcome
Leave granted to the plaintiff to discontinue the proceedings. No order as to costs such that each party should bear their own costs.
Legal Topics
['family Provision' 'discontinuance of Proceedings' 'costs on Discontinuance' 'indemnity Costs' 'alternative Dispute Resolution']
['succession and Probate' 'civil Procedure' 'costs'] ['family Provision' 'discontinuance of Proceedings' 'costs on Discontinuance' 'indemnity Costs' 'alternative Dispute Resolution']

Case Brief

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Procedural Posture

Family Provision Proceedings in the Equity Succession & Probate List / Application for Leave to Discontinue Proceedings and Determination of Costs

Legal Issues

  1. 1 ['Whether leave should be granted to the plaintiff to discontinue the proceedings where the defendant did not consent.' 'Whether the ordinary position as to costs on discontinuance in r 42.19 of the Uniform Civil Procedure Rules 2005 (NSW) should be displaced.' 'Whether the defendant should receive indemnity costs on the basis that the proceedings were brought without just cause.']

Ratio Decidendi

Leave to discontinue was granted because the plaintiff wished to discontinue after reaching a settlement that gave her a greater share of the deceased's estate, which was the nature of the relief sought. The defendant's allegations did not justify indemnity costs because there had been no hearing on the merits and it was inappropriate to inquire into the merits for costs purposes. The defendant's repeated refusal to engage in mediation or alternative dispute resolution justified departing from the ordinary r 42.19 position, so each party was to bear their own costs.

Court Disposition

Leave granted to the plaintiff to discontinue the proceedings. No order as to costs such that each party should bear their own costs.

Orders

  • ['Pursuant to r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW), grants leave to the plaintiff to discontinue the proceedings by filing a notice of discontinuance.' 'Orders that the plaintiff file a notice of discontinuance in the proper form within 7 days of 17 August 2023.' 'Makes no order as to costs such...