Smith v Moore (No 2) [2020] NSWSC 1640

Supreme Court New South Wales

Medium Neutral Citation: Smith v Moore (No 2) [2020] NSWSC 1640 Hearing dates: On the papers Date of orders: 18 November 2020 Decision date: 18 November 2020 Jurisdiction: Equity - Family Provision List Before: Williams J Decision: The plaintiff is to pay the defendant's costs on the ordinary basis. The balance of the defendant's costs (being the difference between the defendant's costs on the ordinary basis and on the indemnity basis) is to be paid out of the estate of the late Yvonne Gwendoline Smith. The Court makes no order as to the plaintiff's costs, with the intention that the plaintiff will bear his own costs. Catchwords: COSTS – whether unsuccessful claimant for provision out of deceased estate should pay own costs and pay defendant executor's costs – no question of principle Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Succession Act 2006 (NSW), ss 59 and 99 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1 and 42.20 Cases Cited: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Detheridge v Detheridge [2019] NSWSC 183 Haertsch v Whiteway (No 2) [2020] NSWCA 287 Harkness v Harkness (No 2) [2012] NSWSC 35 Hinderry v Hinderry (No 2) [2016] NSWSC 1577 Meres v Meres (No 2) [2017] NSWSC 523 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Smith v Moore [2020] NSWSC 1446 Category: Costs Parties: Kenneth David Smith (Plaintiff) Minerva Ruth Moore (Defendant) Representation: Counsel: Mr J E Armfield (Plaintiff) Mr S F Hughes (Defendant)