SIMPSON v HODGES [2008] NSWSC 303

New South Wales Supreme Court

CITATION : SIMPSON v HODGES [2008] NSWSC 303

HEARING DATE(S) : 4, 5 and 6 June 2007; 19 and 20 July 2007

JUDGMENT DATE : 8 April 2008

JURISDICTION : Equity

JUDGMENT OF : Hall J at 1

DECISION : (1) A declaration that the amount of $200,000 transferred from the St George Bank account of the late Pamela Amy Simpson on 6 November 2003 to the account held by the defendant and her husband, John Hodges, was made by the deceased with her knowledge and consent and such monies did not form part of the estate of the deceased. (2) That the plaintiff pay 85% of the costs of the defendant on the ordinary basis pursuant to Part 42 Rule 42.2 of the Uniform Civil Procedure Rules after 30 September 2006 and 100% of the defendant's costs on the same basis prior to 30 September 2006. (3) Judgment for the defendant on the statement of claim. No order as to costs, save as to (2) above. (4) Judgment for the defendant on the cross-claim. No order as to costs. (5) The plaintiff is to pay interest on costs in accordance with the above order pursuant to s.101(4) of the Civil Procedure Act 2005, UCPR Schedule 5 from the dates when an amount in respect of such costs was actually paid to be calculated on the full costs paid prior to 30 September 2006 and after that date on the basis of 85% of the costs paid to reflect the apportionment referred to in paragraph [78]. Liberty to apply with respect to the form or orders.

CATCHWORDS : COSTS - ordinary costs orders - indemnity costs - apportionment of costs - Exceptions to usual costs orders - whether misconduct by successful party - probate exceptions - whether genuine offer of compromise

Civil Procedure Act 2005 LEGISLATION CITED : Supreme Court Act 1970 Uniform Civil Procedure Rules