Clarke & anor v Jessica McFarlane bht Ernest Frederick McFarlane [2008] NSWSC 432

New South Wales Supreme Court

CITATION : Clarke & anor v Jessica McFarlane bht Ernest Frederick McFarlane [2008] NSWSC 432

HEARING DATE(S) : 10 April 2008 JURISDICTION : Equity Division Duty Judge List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 10 April 2008

DECISION : Defendant's costs on party/party basis and plaintiffs' cost on indemnity basis to be paid out of estate.

CATCHWORDS : COSTS – next of kin inquiry – administrators put claimant to strict proof in face of strong prima facie case – claimant adduces unnecessarily extensive and irrelevant evidence – neither party so relatively delinquent as to warrant special costs order

CATEGORY : Consequential orders

Garry Clarke (first plaintiff) PARTIES : Patrick Nigel James Clarke (second plaintiff) Jessica McFarlane bht Ernest Frederick McFarlane (defendant)

FILE NUMBER(S) : SC 3923/07

COUNSEL : Mr P J Beazley (sol) (plaintiffs) Mr R D Wilson (defendant)

SOLICITORS : Beazley Singleton Lawyers (plaintiffs) Teece Hodgson & Ward (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

BRERETON J

Thursday 10 April 2008

3923/07 Garry Clarke and Anor v Jessica McFarlane by her tutor Ernest Frederick McFarlane JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiffs Garry Clarke and Patrick Nigel James Clarke are two of three sons of the deceased Maureen Clarke, who died on 12 September 2005, intestate. Her third son Maurice Clarke had pre-deceased her, on or about 23 January 1998. By summons filed in proceedings 19280 of 2005 in the Probate List on 25 November 2005, Garry and Patrick claimed letters of administration of the estate of the deceased. The grant of administration was initially opposed by the defendant Jessica McFarlane (by her tutor, her maternal grandfather, Ernest Frederick McFarlane), who claimed to be the daughter of Maurice Clarke and as such entitled to the share which he would otherwise have received of the estate had he not pre-deceased his mother. The probate proceedings were settled on 4 June 2007, whereupon the Court ordered that Jessica's caveat cease to be in force, noted her consent to the grant of administration to the plaintiffs, and referred the proceedings to the Registrar to complete the grant. The question of Jessica's status was referred to the General Equity List. 2 In substance then, though not exactly in form, these proceedings are a next of kin inquiry, to determine who are the next of kin of the deceased entitled upon intestacy. However there was in truth only one real issue in the proceedings, namely whether Jessica was or was not the daughter of Maurice: if she was, then she had an entitlement on intestacy to the share which would have been Maurice's had he survived. 3 An order was made for the retention of a joint expert to conduct parentage testing procedures, and as a result Mr Baumgart conducted such procedures and has provided a report which on its face establishes to a very high degree of probability that Jessica was the daughter of a son of the deceased Maureen. The administrators put Jessica to strict proof of chain of custody of the biological material used for the purposes of obtaining the report, and that it was Maurice – and not either of Maureen's two other sons – who was Jessica's father. In response to that requirement a very extensive amount of affidavit evidence was filed. However, the parties now agree that Jessica was Maurice's daughter, and in due course I will make orders reflecting their agreement. But, there remains a dispute as to costs. 4 Some of the extensive material recently filed, at first sight, seems to go well beyond what was necessary or relevant to prove the limited matters that remained in issue. Although it was suggested, for the administrators, that this material was provided belatedly, I am quite unprepared to conclude that its presentation at an earlier stage would have resulted in the proceedings taking a different course. On the other hand, it might be said that, faced with the death certificate of Maurice (which itself declared that Jessica was his only issue), the administrator might have conceded the point at an earlier stage. 5 In other words, it might be said that both sides litigated the matter in an unnecessarily costly manner. 6 Next of kin proceedings traditionally involve strict proof, and I do not think the administrators should be unduly criticised for insisting on strict proof. Although I have observed that a substantial amount of the evidence recently adduced for Jessica might be regarded as unnecessary, I can also see that it might have been thought desirable to explain the nature of the relationship between Jessica's mother and Maurice, in order to show why he might not have been named on Jessica's birth certificate in the circumstances that then prevailed. 7 Ultimately, too, it cannot be overlooked that in proceedings which were contested in an adversary manner, Jessica ultimately succeeded. 8 It seems to me that neither party has acted so unreasonably, relatively to the conduct of the other, as to warrant a special costs order on that account. In my view, the appropriate order is that the defendant's costs on the party/party basis, and the plaintiffs' costs on the indemnity basis, be paid out of the estate of the deceased. 9 In view of the evidence that has now been filed, and noting the consent of the plaintiffs to the first and second orders and their non-opposition to the third order, I make a declaration in terms of paragraph 1 of the document entitled "Short Minutes of Order", as amended, initialled by me, dated this day and placed with the papers. I make orders 2 and 3 in those short minutes. I order that the defendant's costs on the party/party basis and the plaintiffs' cost on the indemnity basis be paid out of the estate of the deceased. The exhibits may be returned. **********