Wayne Laurence Savage v Rebecca Ferguson [No 2] [2014] NSWSC 749

Wayne Laurence Savage v Rebecca Ferguson [No 2] [2014] NSWSC 749

The Calderbank offer represented a genuine compromise, but the first plaintiff's non-acceptance was not unreasonable because the offer was not greater than the amount ultimately awarded and important further evidence relevant to the estate and the defendant's circumstances was not available during the currency of the offer. Accordingly, there was no basis to depart from the usual order that costs follow the event, and the first plaintiff's costs were to be paid from the estate on the ordinary basis, subject to not exceeding the costs estimate provided to and relied on by the Court.

Jurisdiction
Australia
Judgment Date
06 June 2014
Procedural Posture
Costs in Claim for Provision From Mother's Estate / Costs Determination After Judgment Delivered on 30 May 2014
Outcome
First plaintiff's costs to be paid from the estate on the ordinary basis, capped at the costs estimate provided to the Court.
Legal Topics
['family Provision Litigation' 'calderbank Offer' 'costs Discretion' 'ordinary Basis Costs' 'costs From Estate']
['costs' 'succession'] ['family Provision Litigation' 'calderbank Offer' 'costs Discretion' 'ordinary Basis Costs' 'costs From Estate']

Case Brief

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Procedural Posture

Costs in Claim for Provision From Mother's Estate / Costs Determination After Judgment Delivered on 30 May 2014

Legal Issues

  1. 1 ["Whether the first plaintiff's failure to accept the defendant's Calderbank offer of 4 October 2013 was unreasonable." "Whether the first plaintiff should recover his costs of the entire proceedings from the estate on the ordinary basis or pay the defendant's costs incurred after 4 October 2013."]

Ratio Decidendi

The Calderbank offer represented a genuine compromise, but the first plaintiff's non-acceptance was not unreasonable because the offer was not greater than the amount ultimately awarded and important further evidence relevant to the estate and the defendant's circumstances was not available during the currency of the offer. Accordingly, there was no basis to depart from the usual order that costs follow the event, and the first plaintiff's costs were to be paid from the estate on the ordinary basis, subject to not exceeding the costs estimate provided to and relied on by the Court.

Court Disposition

First plaintiff's costs to be paid from the estate on the ordinary basis, capped at the costs estimate provided to the Court.

Orders

  • ['The first plaintiff is to have his costs of the proceedings on the ordinary basis out of the estate.' "The amount of the first plaintiff's costs recoverable out of the estate is not to exceed the estimate provided to the Court and upon which the Court relied." 'Orders were to be made in accordance with short...