Coote v Coote (No 2) [2021] NSWSC 461

Supreme Court New South Wales

Medium Neutral Citation: Coote v Coote (No 2) [2021] NSWSC 461 Hearing dates: On the papers Date of orders: 30 April 2021 Decision date: 30 April 2021 Jurisdiction: Equity Before: Robb J Decision: (1) The Court dismisses the defendant's application to vary the costs orders made by the Court on 9 February 2021. (2) Order the defendant to pay the plaintiff's costs of the application. Catchwords: COSTS — Succession — Family provision — Deceased estate — Where orders made for further family provision in favour of the plaintiff — Where the plaintiff was given a total legacy of $100,000 — Where the Court made the conventional costs order that the plaintiff's costs be paid out of the estate on the ordinary basis and that the defendant's costs be paid out of the estate on the indemnity basis— Where the defendant had made an offer of compromise whereby the plaintiff would have received a legacy of $101,000 — Where the defendant made an application pursuant to UCPR 42.15 that the plaintiff be ordered to pay the defendant's costs on the indemnity basis from the date of the offer of compromise — Where the defendant had introduced issues into the litigation after the date of the offer of compromise that substantially increased the parties' costs — Where the defendant failed in respect of the issues so introduced — Where the plaintiff at the time the offer of compromise was made could not reasonably have estimated the final amount of the costs that would be ordered to be paid out of the estate — Where the Court would have made an order for further family provision in the nature of a legacy significantly greater than $100,000 if the costs payable out of the estate on the conventional basis had not been 60% of the value of the estate— Where the application for special costs order is dismissed Legislation Cited: Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Chan v Chan [2016] NSWCA 222 Connor v Hatgis (No 2) [1995] NSWCA 92 Coote v Coote [2021] NSWSC 59 Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248 EDPI Pty Ltd v Rapdocs Pty Ltd [2007] NSWSC 195 Hillier v Sheather; Sheather v Hillier (1995) 36 NSWLR 414 Houatchanthara v Bednarczyk [1996] NSWCA 253 Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 339 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 Philpott v Pantos [2018] NSWSC 852 Sherborne Estate (No 2), Re; Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003 Sydney Attractions Group Pty Ltd v Frederick Schulman (No 3) [2013] NSWSC 1544 YWCA Australia v Chief Commissioner of State Revenue (No 2) [2021] NSWSC 102 Category: Costs Parties: Neil William Coote (plaintiff) Brian Thomas Coote (defendant) Representation: Counsel: K Morrissey (plaintiff) C Hodgson (defendant)