Kuether v Kuether [2020] NSWSC 1459

Supreme Court New South Wales

Medium Neutral Citation: Kuether v Kuether [2020] NSWSC 1459 Hearing dates: On the papers Date of orders: 21 October 2020 Decision date: 21 October 2020 Jurisdiction: Equity - Applications List Before: Williams J Decision: The proceeding is dismissed with no order as to costs. Catchwords: COSTS – dispute between parties as to the plaintiff's right to reside at property of the parties' deceased father – proceeding commenced by the plaintiff to enforce rights under occupancy agreement entered into prior to death of deceased – defendant appointed joint executor under will of deceased – proceedings resolved without a determination on the merits – not appropriate to conduct a hypothetical trial for the purposes of determining a question of costs – no orders made as to the costs of the proceeding Legislation Cited: Civil Procedure Act 2005 (NSW), s 26 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16 and 42.19 Cases Cited: Baller Industries Pty Ltd v Mero Mero Leasing Pty Ltd [2019] NSWSC 1067 Category: Costs Parties: Will Paul Kuether (Plaintiff) Monika Christianne Kuether (Defendant) Representation: Solicitors: Somerville Legal (Plaintiff) Segelov Taylor Lawyers (Defendant) File Number(s): 2020/136935 Publication restriction: N/A

Judgment 1. This is an application by the plaintiff for an order that the defendant pay his costs of this proceeding which was settled at a Court-annexed mediation in June 2020. 2. In summary, the plaintiff accepts that there has been no determination on the merits of the dispute between the parties but contends that he should nonetheless have his costs of the proceeding paid by the defendant because the defendant has capitulated. 3. The defendant opposes any order requiring her to pay the plaintiff's costs. The defendant submits that the Court should either make no order as to costs, or order that each party pay their own costs of the proceeding. In the alternative, the defendant submits that any costs paid by the defendant should be limited to the period from the commencement of the proceeding on 7 May 2020 up until 11 May 2020. 4. The plaintiff relied on his affidavits affirmed on 10 and 31 July 2020. The defendant relied on her affidavits sworn on 10 May and 27 July 2020 and the affidavit of Tanya Segelov, a solicitor who has had carriage of part of the underlying dispute between the parties. Both parties prepared written submissions. 5. The parties indicated that they had no objection to the Court determining the issue of costs on the papers.