Stephen John Dalton v Vicki Paull (No.2) [2007] NSWSC 803

New South Wales Supreme Court

CITATION : Stephen John Dalton v Vicki Paull (No.2) [2007] NSWSC 803

HEARING DATE(S) : 18/07/07

JUDGMENT DATE : 24 July 2007

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

CATCHWORDS : Family Provision - Application for a Capping Order on the matter of costs awarded to the Plaintiff in respect of a small estate - Legacy granted for the Plaintiff of $25,000 and the costs capped at $25,000

LEGISLATION CITED : Civil Procedure Act 2005 - s98(1)(a)(b), s98(4)(a)(b)(c)(d) Uniform Civil Procedure Rules - Rule 42.4

Johnson Tiles Pty Ltd v Esso Australia Ltd (1999) 94 FCR 167 Parker v Parker [2006] NSWSC 473 CASES CITED : Sherborne Estate (No2) Vanvalen v Neaves (2005) 65 NSWLR 268 Woolf v Snipe (1933) 48 CLR 677

PARTIES : Stephen John Dalton v Vicki Paull

FILE NUMBER(S) : SC 2407/06

COUNSEL : Plaintiff - Mr R Wilson Defendant - Mr L Ellison SC

SOLICITORS : Plaintiff - Ms NA Darcy Defendant - Mr AS Holmes

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

24 July 2007

2407/06 Stephen John Dalton v Vicki Paull (No. 2) JUDGMENT 1 HIS HONOUR: I have now heard further submissions on the costs orders to be made in this matter after publication of my reasons on 29 June 2007. In that judgment, I found that the plaintiff should receive a legacy out of the estate of the deceased in the sum of $25,000. I ordered that the plaintiff's costs on the ordinary basis and the defendant's on the indemnity basis be paid or retained out of the estate of the deceased. On the request of Counsel, I stayed the application of that order so that an order seeking to cap the amount of costs could be made. This judgment addresses the submissions which deal with that aspect. 2 This was a small estate and after a distribution of $30,000, the estate amounted to $172, 187.00. There had already been paid out of that a sum of $5,257 on account of the defendant's costs and the balance of the defendant's costs were estimated at $15, 712. The plaintiff's costs were estimated at $33, 948 and that left a distribute of estate if both those sums were accepted in the amount of $122, 527. There is now evidence before me that the total amount of the plaintiff's party and party costs assessed by the plaintiff's solicitor is $34,673.85. That evidence gives some details of the particular items involved in the work but no detailed breakdown other than as follows: (a) Professional fees $18,795 (b) GST $1,879.50 (c) Counsel's fees $11, 330 (d) Miscellaneous disbursements $2,669.35 3 The application was made initially under section 98(4)(c) of the Civil Procedure Act 2005. Another source of power for a slightly different order is Uniform Civil Procedure Rules, Rule 42.4. I will address both matters. 4 Rule 42.4 of the Uniform Civil Procedure Rules provides as follows: