Marshall v. Carruthers; Marshall v. Marshall [2002] NSWCA 86

New South Wales Court of Appeal

CITATION : Marshall v. Carruthers; Marshall v. Marshall [2002] NSWCA 86 FILE NUMBER(S) : CA 40670/01; 40671/01 HEARING DATE(S) : 22 February 2002 JUDGMENT DATE : 22 February 2002

Margaret Lesley Marshall - appellant PARTIES : Linda Hope Carruthers - respondent (40670/01) Kim Neil Marshall - respondent (40671/01) JUDGMENT OF : Hodgson JA at 1-10, 13-15; Young CJ in Eq at 11; Palmer J at 12

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED5141/00 FILE NUMBER(S) : ED2839/01 LOWER COURT Master Macready JUDICIAL OFFICER :

Mr. C. Bevan for appellant COUNSEL : Mr. L. Ellison for Ms. Carruthers Submitting appearance by Mr. Kim Marshall SOLICITORS : Turner Freeman, Sydney for appellant Teece Hodgson & Ward, Sydney for respondent CATCHWORDS : COSTS - SUCCESSION - Family provision and maintenance - Appeal succeeds on point not clearly notified before trial. ND. DECISION : See pars.4, 10, 14

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40670/01

HODGSON J YOUNG J PALMER J

Friday 22 February 2002 MARGARET LESLEY MARSHALL v LINDA HOPE CARRUTHERS JUDGMENT (On Costs)

1 HODGSON J: The matter that we have been discussing concerns the costs of the appeal. The order that we are minded to make is that, although Kim will have to pay the costs of the notice of appeal and any costs solely referrable to his appeal, the other costs, including today's costs, should be, in effect, costs in the appeal in relation to Ms Carruther's case, and that she will have to bear those costs, that is the costs of today. 2 There were some separate written submissions prepared in relation to Kim's appeal. They will have to be paid by Kim. DISCUSSION ENSUED 3 HODGSON J: We have now heard submissions as to costs. In relation to costs of the appeal, in my opinion, it is clear that those costs should follow the event. 4 There are some costs that are referrable to both appeals, notably the costs of today's hearing. I think, having regard to the substantive issues and the substantive contestants, it is appropriate that those costs be borne by Ms Carruthers. So, in relation to each appeal, the order will be that the respondent pay the appellant's costs of the appeal, but that will be further clarified by indicating that the costs payable by Kim will be those costs that are referrable solely to his appeal, and all the other costs of both appeals are to be borne by Ms Carruthers. 5 Coming to the question of costs at first instance, in my opinion the result determined by this Court depends on two matters: firstly, the determination by this Court of the trust issue, and secondly, to a lesser extent, the augmentation to Ms Carruthers' assets occurring by reason of the workers' compensation decision. 6 I have already referred to submissions by Mr Ellison to the effect that the trust issue was not raised by the Master. The determination of this Court is that it was sufficiently raised to require the Master to determine it. 7 However, the facts referred to by Mr Ellison persuade me that the issue was not raised in such a way as to make it clear to Ms Carruthers and her legal advisers prior to the hearing that this was the basis of the defence. As late as 1 June 2001, Mrs Marshall's solicitors wrote to Ms Carruthers' solicitors asserting, inter alia, that their client would put on evidence of her financial needs for provision from the estate and the essential nature of her requirements to defend the claim. 8 In the light of that assertion, and the equivocal nature of the affidavit that was put on, it seems to me that Ms Carruthers was not put on clear notice prior to the hearing as to the claim of the existence of a trust for Kim absolutely, or of any claim that this was part of the substantial defence to Ms Carruthers' claim. 9 In those circumstances, it does seem to me that, certainly up to the time when the workers' compensation decision was made, Ms Carruthers had a reasonable claim that it was appropriate to pursue. The additional $200 000 provided by the workers' compensation decision weakened that claim but, as submitted by Mr Ellison, the possibility of an appeal from that decision does not appear to have been definitively ruled out at any time prior to the Master's decision. 10 Having regard to those considerations, I think the appropriate order is that the costs of Ms Carruthers in the proceedings below be paid out of the estate on a party party basis. 11 YOUNG J: I agree, but it is a very special case, and any future unsuccessful plaintiff would be unwise to rely on that judgment as a precedent. I agree with Hodgson J. 12 PALMER J: I agree with the result in this case and with Hodgson J's reasons for the result. DISCUSSION ENSUED AS TO INDEMNITY COSTS 13 HODGSON J: I think it is clear from the reasons for decision that have been given already that the basis on which the Master did not award indemnity costs to Mrs Marshall for the whole of the hearing was not a sound basis. 14 I think the appropriate order is that Mrs Marshall have indemnity costs from the estate in respect of the original hearing and in respect of the appeal, although the costs of the appeal to be paid by other parties would be on a party party basis. 15 The matter is stood over for short minutes to 9.50am on Friday 8 March 2002 before his Honour Young J. **********