Griffiths v Westernhagen [2008] NSWSC 954

New South Wales Supreme Court

CITATION : Griffiths v Westernhagen [2008] NSWSC 954

HEARING DATE(S) : 10 September 2008

JUDGMENT DATE : 10 September 2008

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Order made for plaintiff's costs to be paid by defendant in the global sum of $18,000.

CATCHWORDS : SUCCESSION [335] – Family provision – Practice – Costs.

LEGISLATION CITED : Civil Procedure Act s 98 Family Provision Act 1982 s 33

CATEGORY : Procedural and other rulings

Bearns v Bearns-Hayes NSWSC 7 May 1997 unreported Griffiths v Westernhagen [2008] NSWSC 851 CASES CITED : Moussa v Moussa [2006] NSWSC 509 Sherborne Estate (No 2): Vanvalen v Neaves (2005) 65 NSWLR 268 Singer v Berghouse (1993) 67 ALJR 708

PARTIES : Diane Maree Griffiths (P) Megan Lynette Westernhagen (D)

FILE NUMBER(S) : SC 1624/07

COUNSEL : C M Wilson (P) J S Drummond (D)

SOLICITORS : McCabe Terrill Lawyers Pty Limited (P) Solari Legal (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 10 SEPTEMBER 2008

1624/07 DIANE MAREE GRIFFITHS v MEGAN LYNETTE WESTERNHAGEN JUDGMENT 1 HIS HONOUR: What I am engaged in is the difficult task of determining what costs order there should be in a family provision case in which provision was made for the plaintiff, but in a small sum and in relation to an estate which is not large. Both counsel have furnished me with written submissions that have been helpful in my being able to dispose of this argument in a short time this morning, thereby avoiding yet further costs in this case. Both counsel have addressed the principles applicable to costs in family provision cases and have usefully referred me to recent authority including Singer v Berghouse (1993) 67 ALJR 708; Sherborne Estate (No 2): Vanvalen v Neaves (2005) 65 NSWLR 268; Moussa v Moussa [2006] NSWSC 509. I should add that I agree with Young J's decision in Bearns v Bearns-Hayes 7 May 1997 unreported that s 33 of the Family Provision Act 1982 displaces s 98 of the Civil Procedure Act only pro tanto and not completely and so does not operate in the present case. 2 There are some special features of this case. There were offers made by the defendant of some $95,000 as an offer of compromise and a Calderbank offer that fell short by the small margin of $5,000 of the $100,000 provision that the Court made for the plaintiff. It is earnestly submitted on the defendant's behalf that in the case of a smallish estate and a small award by way of provision the Court should take the approach that the plaintiff ought have accepted the offer of $95,000 and that the interests of justice now dictate that the failure to accept should impact on her entitlement as to costs. 3 I do not propose to accept that submission. The defendant's offers fell short of what the plaintiff in fact achieved at the hearing and in those circumstances she cannot have the benefit of having made the offers. 4 The other special feature of the case was that essentially it was heard on one day only, 10 March 2008. The protraction beyond that day arose from the plaintiff seeking adjournments to permit her to bring evidence concerning her irritable bowel syndrome and the impact that that might have on her future earning capacity. At some stage during that process I gave the warning that the course she sought to follow might in the long run be treated as being at her risk as to costs. The evidence when it was brought in showed that she did suffer some problems as a result of her irritable bowel syndrome but that those symptoms and the prognosis did not significantly alter the situation as it already appeared in relation to her other health problems. The long and short of my conclusions in relation to that are set out in [59] of my judgment: Griffiths v Westernhagen [2008] NSWSC 851. My conclusions would not have been different had the material concerning the irritable bowel syndrome not been led. 5 The plaintiff has said in an affidavit that it was only at a rather coyly unspecified time last year that the desirability of pursuing further investigations about the irritable bowel syndrome came to her attention. However, in the report of Dr Roslyn Ridgway of 30 June 2008 it is made plain that the irritable bowel syndrome was diagnosed by Dr Ridgway as early as 2005, although no explanation is given as to why this did not surface in Dr Ridgway's earlier evidence. The long and short of the matter is that, in my view, had proper diligence been exercised, the irritable bowel syndrome material could have been obtained and tendered by the plaintiff at the trial of 10 March 2008. Since she sought protraction of the proceedings for it to be brought in after that time and it had no effect in increasing the provision the Court made for her, I am of the view that she ought bear the defendant's costs of the proceedings from 10 March 2008 until the delivery of judgment on 19 August 2008. 6 There is one thing that I do propose to do in an attempt to ameliorate the costs burden in this case. I do not think that an order should be made which will lead to the further costs of negotiations between the parties over the quantum of costs or, worse still, to the costs of an assessment of costs. I propose for those reasons to make an order for costs in a global sum. 7 The material before me shows that the plaintiff's costs were $32,000 up to and including 10 March. It can only be done in an imprecise and broad brush fashion, but I intend to make a deduction of about 20 per cent from those costs to reflect the way in which they may have been reduced upon assessment. The reduction should be of about $6,000 and I propose to allow costs in favour of the plaintiff up to 10 March in the sum of $26,000. However, in my view the plaintiff should bear the defendant's costs of the proceedings thereafter. There is evidence that those costs approach $10,000. The complaint has been made that this figure seems rather heavy, but I am not in a position to do more in relation to that other than to apply the same reduction for a putative disallowance on assessment of 20 per cent. I therefore propose to deduct about 20 per cent or $2,000 from the defendant's costs which should be borne by the plaintiff and I assess those costs at $8,000. 8 Deducting the $8,000 from the $26,000 mentioned above I propose to order that the defendant pay the plaintiff's costs in the global sum of $18,000.