Kohari v NSW Trustee & Guardian (No 3) [2017] NSWSC 1431

Kohari v NSW Trustee & Guardian (No 3) [2017] NSWSC 1431

Because the plaintiff recovered a legacy equal to the defendant's earlier offer of compromise, UCPR r 42.15 governed the general costs of the proceedings, subject to existing interlocutory costs orders. The Court declined to apply UCPR r 42.8(2) to give the plaintiff indemnity costs for paternity-related preparation...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
19 October 2017
Procedural Posture
Family Provision Costs Determination / Post Judgment Costs Orders After Judgment on the Plaintiff's Claim
Outcome
Costs orders made; UCPR r 42.8(2) ordered not to apply to the plaintiff's paternity-preparation costs, and general costs dealt with under UCPR r 42.15 subject to earlier interlocutory orders.
Legal Topics
['party/party Costs' 'offer of Compromise' 'notice to Admit Facts' 'indemnity Costs' 'parentage Testing']
['succession' 'civil Procedure' 'costs'] ['party/party Costs' 'offer of Compromise' 'notice to Admit Facts' 'indemnity Costs' 'parentage Testing']

Source-derived case record

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Procedural Posture

Family Provision Costs Determination / Post Judgment Costs Orders After Judgment on the Plaintiff's Claim

Legal Issues

  1. 1 ["Whether the costs consequences of the defendant's offer of compromise under UCPR r 42.15 should apply where the plaintiff's judgment was no more favourable than the offer." "Whether UCPR r 42.8(2) should require the defendant to pay the plaintiff's indemnity costs incurred in preparation for proving that the plaintiff was the biological child of the deceased after the defendant disputed a notice to admit that fact." 'How existing interlocutory costs orders made by McDougall J and Hallen J should be preserved in the final costs orders.']

Ratio Decidendi

Because the plaintiff recovered a legacy equal to the defendant's earlier offer of compromise, UCPR r 42.15 governed the general costs of the proceedings, subject to existing interlocutory costs orders. The Court declined to apply UCPR r 42.8(2) to give the plaintiff indemnity costs for paternity-related preparation because the defendant, as executor, had no personal knowledge of paternity, its decision to put paternity in issue was not unreasonable, and the costs of DNA testing and the related motion had already been dealt with by Hallen J.

Court Disposition

Costs orders made; UCPR r 42.8(2) ordered not to apply to the plaintiff's paternity-preparation costs, and general costs dealt with under UCPR r 42.15 subject to earlier interlocutory orders.

Orders

  • ["Order that the defendant pay the plaintiff's costs of the proceedings up to and including 21 March 2016, except for the costs thrown away and wasted by the vacation of the hearing date on 9 March 2016, to be assessed on the ordinary basis." "Order that the plaintiff pay the defendant's costs of the proceedings...