Haertsch v Whiteway (No 2) [2020] NSWCA 287

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Haertsch v Whiteway (No 2) [2020] NSWCA 287 Hearing dates: On the papers Decision date: 16 November 2020 Before: Macfarlan JA; Meagher JA; Leeming JA Decision: (1) First respondent pay the appellant's costs of the appeal and cross appeal, assessed on the ordinary basis. (2) First respondent (as plaintiff) pay 25% of the first and second defendants' costs of the proceedings below, assessed on the ordinary basis, with the intention that the parties otherwise bear their own costs. (3) The difference between the amount recovered from the first respondent under Orders 1 and 2 and the total of the appellant's costs of the appeal, assessed on the indemnity basis, and the costs at first instance, assessed on the indemnity basis, be paid out of the estate of Stephne Whiteway. (4) Note that no orders are made as to the costs of the second respondent, Jane French, to the intent that she bears her own costs of the proceedings below, and of the appeal and cross appeal. Catchwords: COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion – Family provision proceedings – Where plaintiff successful at first instance but lost on appeal – Whether to make no order as to costs of first instance and appeal proceedings Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Family Provision Act 1982 (NSW), ss 6(4), 24, 33(1) Trustees Act 1925 (NSW), s 59(4) Uniform Civil Procedure Rules 2005, r 42.1 Cases Cited: Bevilacqua v Robinson (No 2) [2008] NSWSC 520 Ray v Greenwell [2009] NSWSC 1197 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Dugac v Dugac [2012] NSWSC 192 Haertsch v Whiteway [2020] NSWCA 133 Jvancich v Kennedy (No 2) [2004] NSWCA 397 McCusker v Rutter [2010] NSWCA 318 Moussa v Moussa [2006] NSWSC 509 National Trustees Executors and Agency Company of Australasia Ltd v Barnes (1941) 64 CLR 268; [1941] HCA 3 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Purnell v Tindale [2020] NSWSC 746 Raiola v Raiola [2014] NSWSC 1172 Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003 Salmon v Osmond [2015] NSWCA 42 Sassoon v Rose [2013] NSWCA 220 Singer v Berghouse [1993] HCA 35; (1993) 67 ALJR 708 Underwood v Underwood [2009] QSC 107 Category: Costs Parties: Adrian Haertsch (as executor of the estate of Stephne Whiteway) (first appellant) Adrian Haertsch (as executor of the estate of Donald Whiteway) (second appellant) Elizabeth Whiteway (first respondent) Jane French (second respondent) Representation: Counsel: J Brown (appellants) First respondent self-represented