Perry v Perry (No 2) [2022] NSWSC 1462

Perry v Perry (No 2) [2022] NSWSC 1462

Because the plaintiff and the first, second and third defendants each achieved substantial but mixed practical success and the forensic effort on most issues could not be fairly and rationally separated, the just outcome was that they bear their own costs of the balance of the proceedings. The eco-tourism development approval claim was distinct and failed, so costs followed the event on that issue. The plaintiff also had to pay ordinary costs thrown away by the vacation of the part-heard hearing. Indemnity costs were not warranted because the plaintiff's rejection of the Calderbank offer was not unreasonable, particularly as the offer did not include a proposal for release of Anne's...

Jurisdiction
Australia
Judgment Date
27 October 2022
Procedural Posture
Consequential Orders; Costs / After Principal Judgment, Final Orders and Costs
Outcome
Consequential declarations and costs orders made; balance of the plaintiff's claims dismissed.
Legal Topics
['party/party Costs' 'general Rule That Costs Follow the Event' 'apportionment of Costs Where There Has Been Mixed Success' 'calderbank Offers' 'estate Administration' 'trust Proceeds' 'eco Tourism Development Approval Valuation']
['equity' 'costs' 'trusts and Estates'] ['party/party Costs' 'general Rule That Costs Follow the Event' 'apportionment of Costs Where There Has Been Mixed Success' 'calderbank Offers' 'estate Administration' 'trust Proceeds' 'eco Tourism Development Approval Valuation']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Consequential Orders; Costs / After Principal Judgment, Final Orders and Costs

Legal Issues

  1. 1 ['What final substantive declarations and orders should be made concerning the estate of the late Russell Perry and the net proceeds of sale of 383 Waterfall Way, Fernmount.' 'Whether costs should follow the event or be apportioned given mixed success on different issues.' 'Whether Tanya should pay costs thrown away by the vacation of the part-heard hearing on 18 October 2018 on an ordinary or indemnity basis.' "Whether Tanya should pay the defendants' costs of the eco-tourism development approval issue." "Whether it was unreasonable for Tanya to reject the defendants' Calderbank offer dated 7 February 2019."]

Ratio Decidendi

Because the plaintiff and the first, second and third defendants each achieved substantial but mixed practical success and the forensic effort on most issues could not be fairly and rationally separated, the just outcome was that they bear their own costs of the balance of the proceedings. The eco-tourism development approval claim was distinct and failed, so costs followed the event on that issue. The plaintiff also had to pay ordinary costs thrown away by the vacation of the part-heard hearing. Indemnity costs were not warranted because the plaintiff's rejection of the Calderbank offer was not unreasonable, particularly as the offer did not include a proposal for release of Anne's...

Court Disposition

Consequential declarations and costs orders made; balance of the plaintiff's claims dismissed.

Orders

  • ['Notes that the first defendant elects not to seek an account in relation to the estate of the late Russell Perry, and that this election relates only to the act of seeking an account, and does not relate to participation in any account that occurs by reason of the actions of others.' 'Declares that the estate of...