Supreme Court New South Wales Medium Neutral Citation: Jones v Krawczyk (No. 2) [2011] NSWSC 352 Hearing dates: On the papers. Decision date: 02 May 2011 Before: White J Decision: Order that the plaintiff pay the defendant's costs of the proceedings not including: (a) the costs of the affidavits of the defendant sworn on 2 September 2010 and 18 October 2010, or the costs of the affidavits of Krystyna Krawczyk sworn 18 October 2010 or Betty Speck sworn 15 October 2010; and (b) the costs of the submissions as to what costs orders should be made. Catchwords: PROCEDURE - costs - general rule costs follow the event - whether costs should include costs of affidavits read that clearly not relevant - costs incurred in obtaining affidavits not properly and reasonably incurred - order plaintiff to pay defendant's costs of proceedings not including the costs of the affidavits in question and the costs of the submissions as to what costs orders should be made Cases Cited: Ramsay v Trustees Executors and Agency Co Ltd [1948] HCA 44; (1948) 77 CLR 321 Jones v Krawczyk [2011] NSWSC 139 Saunders v Vautier (1841) 4 Beav 115; 49 ER 282 Category: Costs Parties: Zofia Maria Jones (Plaintiff) John Krawczyk (Defendant) Representation: Counsel: C Harris SC (Plaintiff) L Judge (Defendant) Solicitors: Craddock Murray Neumann - Plaintiff Williams Roncolato Lawyers - Defendant File Number(s): 2010/137822 Judgment 1HIS HONOUR : The plaintiff accepts that she should pay the defendant's costs of these proceedings as she was unsuccessful. She submits that an order should be made that those costs not include the costs of four affidavits, namely, two affidavits made by the defendant sworn 2 September 2010 and 18 October 2010, an affidavit of Krystyna Krawczyk sworn 18 October 2010 and an affidavit of Betty Speck sworn 15 October 2010. Those affidavits set out in considerable detail what was said to be the plaintiff's relationship with the deceased, her requests for financial assistance, her relationship with her husband and his financial management, statements made by the deceased as to the reasons for changes to her will, and discussions between the plaintiff and the defendant concerning the will. 2The plaintiff served two affidavits in response to the defendant's first affidavit. The defendant then served three further affidavits by way of corroboration of the assertions in the defendant's first affidavit. 3Even if the material in the defendant's affidavits were relevant, much of the material would have been inadmissible had objection been taken. 4The position taken by counsel for the plaintiff to the defendant's affidavits was that the plaintiff did not concede that the material in the affidavits was relevant, but, to avoid taking up the time which would be involved in dealing with objections to affidavits, the plaintiff did not make objection to them. This was a sensible approach. 5Whilst the affidavits were read, they were not thereafter referred to. In response to my question as to what was the relevance of the affidavits, counsel for the defendant could not point to any. 6It was common ground at the hearing that the tendency of the will to bring about a divorce between the plaintiff and her husband was to be determined without regard to the particular circumstances and characteristics of the plaintiff, her husband and the deceased, but was to be decided having regard to what the court considered to be the general tendency of the provision. 7This position was in accordance with what was decided in Ramsay v Trustees Executors and Agency Co Ltd [1948] HCA 44; (1948) 77 CLR 321, as noted at para [20] of my reasons ( Jones v Krawczyk [2011] NSWSC 139). As Latham CJ said (at 327): " The question whether a case falls within the prohibited class must be determined by a consideration of its general tendency, as Lord Atkin said, to provide a temptation and an estimate of the risk that persons would yield to that temptation. This question must be decided without evidence: In re Wallace; Champion v. Wallace (1920) 2 Ch., at pp. 302-303 ." 8Similarly Starke J said (at 330) that for a disposition to be invalid as being contrary to public policy, it must have a general tendency to injure public interests having regard to human nature and not the character of particular individuals. Likewise, McTiernan J (at 334) said that the approach is " an abstract and theoretical one. It must be made apart from particular individuals ". 9This being the law, the costs incurred by the defendant in obtaining the four affidavits in question were not properly and reasonably incurred. Counsel for the defendant submitted that it was not unreasonable for the defendant to adduce evidence that the testatrix had genuine or reasonably held fears that the plaintiff would be a bad money manager and had perceived that the plaintiff would be easily and inappropriately influenced by her husband. However, that is inconsistent with the principles laid down in Ramsay v Trustees Executors and Agency Co Ltd. Counsel submitted that there was no direct authority on whether the clause going to the appointment of a trustee, as distinct from a clause directly relating to a gift, could be void on the grounds of public policy as having a tendency to lead to a dissolution of marriage or to interfere with the consortium of marriage. That is true, but it does not mean that there was any basis on which the evidence in the affidavits filed for the defendant could have been relied on having regard to what the High Court said in Ramsay v Trustees Executors and Agency Co Ltd . 10The alternative claim made by the plaintiff in the summons that she was entitled to a distribution of the estate on the principles in Saunders v Vautier (1841) 4 Beav 115; 49 ER 282 was always hopeless. The affidavits were also irrelevant to that issue. 11It is appropriate for the court itself to decide the question as to whether or not the costs of the affidavits filed for the defendant were reasonably incurred, rather than to leave that question to a costs assessor. The issue is one of law. 12For these reasons I order that the plaintiff pay the defendant's costs of the proceedings not including: (a) the costs of the affidavits of the defendant sworn on 2 September 2010 and 18 October 2010, or the costs of the affidavits of Krystyna Krawczyk sworn 18 October 2010 or Betty Speck sworn 15 October 2010; and (b) the costs of the submissions as to what costs orders should be made. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2011