McKENNA v SOLOMON [NO 2] [1995] NSWCA 282

McKENNA v SOLOMON [NO 2] SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBY P, HANDLEY JA and SHELLER JA 29 March 1995

[1995] NSWCA 282

COSTS — indemnity costs — offer of compromise — Family Provision Act proceedings — successful appeal against refusal of provision — appellant awarded legacy of $40,000 and costs — after trial but before appeal, appellant offers to compromise for $10,000 — offer refused — whether indemnity costs should be ordered in appeal — held: In the exercise of the Court's discretion, indemnity costs should be ordered. Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721 (CA); Tickell v Trifelska Pty Limited (1991) 25 NSWLR 353 (SC); Calderbank v Calderbank [1976] Fam 93, [1976] 3 WLR 586 (CA) applied.

Kirby P. On 9 December 1994 the Court, by its orders, upheld an appeal from a decision in the Equity Division of the Supreme Court constituted by Master McLaughlin. See McKenna v Solomon & Ors, Court of Appeal (NSW), unreported, 9 December 1994; [1994] NSWJB 136.

The Court directed that, within 28 days of publication of its reasons, the parties should bring in short minutes to give effect to that decision. Subsequently short minutes were prepared. They have been placed before the Court today.

Controversy has arisen with respect to at least one of the draft orders. It is inappropriate that this Court should, at least in the first instance, endeavour to resolve the problem. Accordingly, the settlement of the short minutes will be stood over to be considered, if it still be necessary by Sheller JA. The minutes, as then approved, can result in orders, by consent of the parties. If his Honour later thinks it appropriate, he will direct that the matter should again bereturned before this Court to resolve the outstanding issues in relation to the short minutes.