Anne Stephanie Wright -v- Public Trustee [2007] NSWSC 1069

New South Wales Supreme Court

CITATION : Anne Stephanie Wright -v- Public Trustee [2007] NSWSC 1069

HEARING DATE(S) : 29 August 2007 JUDGMENT OF : Associate Justice McLaughlin

EX TEMPORE JUDGMENT DATE : 29 August 2007

DECISION : 1. I order that Order 2 made by me on 15 August 2007 be emended by inserting after the words "party and party basis" the words "in an amount not exceeding $50,000".

CATCHWORDS : Succession. Family Provision. Costs. Proportionality. Capping of costs.

Testator's Family Maintenance and Guardianship of Infants Act 1916 LEGISLATION CITED : Family Provision Act 1982 Civil Procedure Act 2005

Carrol v Cowburn [2003] NSWSC 248 Deves v Porter [2003] NSWSC 878 Foster v Lisle [2003] NSWSC 1243 CASES CITED : Moore v Moore [2004] NSWSC 587 Sherborne Estate (No 2) Vanvalen v Neaves [2005] NSWSC 1003 Ta v Ta [2007] NSWSC 773 Dalton v Paull [2007] NSWSC 803

PARTIES : Anne Stephanie Wright (Plaintiff) Public Trustee (Defendant)

FILE NUMBER(S) : SC 1955 of 2006

COUNSEL : Mr S. Benson (Plaintiff) Mr L. Ellison SC (Defendant)

SOLICITORS : Downie & Co (Plaintiff) Antony John Sutton, Solicitor for the Public Trustee (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 29 August 2007

1955 of 2006 ANNE STEPHANIE WRIGHT –v- PUBLIC TRUSTEE JUDGMENT 1 HIS HONOUR: I published my reasons for judgment in this matter on 15 August 2007. My orders were, substantively, that the plaintiff, in addition to the legacy of $10,000 given to her by the will of the deceased, should receive a further legacy in the sum of $50,000. In respect to the costs of the proceedings I ordered that the costs of the plaintiff on the party and party basis and the costs of the defendant on the indemnity basis be paid out of the estate of the deceased. The defendant has now made an application for an order capping the costs of the plaintiff at a maximum amount of $50,000. 2 In my reasons for judgment I recorded that it was estimated on behalf of the plaintiff that her costs would total about $57,184. That estimation was based upon a hearing occupying no more than one day. In the event, the hearing extended over three days, although the hearing occupied only one and half hours on the second day and only half a day on the third day. I, therefore, expressed the view that it was prudent to assume that the costs of the plaintiff would total at least $70,000. 3 However, it should be emphasised that it was the estimation of the solicitor for the plaintiff that a hearing occupying no more than one day would have attracted costs of about $57,184. That amount is more than the amount which the plaintiff received in consequence of the bringing of the present proceedings. She had, as I have already recorded, received under the will of the deceased a legacy of $10,000. In consequence of the institution by her of the present proceedings she was awarded an additional amount of $50,000. 4 In support of the present application I have been taken by senior counsel for the defendant to the provisions of s 60 of the Civil Procedure Act 2005 which provides: In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute.