Bolger v McDermott (No 2) [2013] NSWSC 1330

Supreme Court New South Wales

Medium Neutral Citation: Bolger v McDermott (No 2) [2013] NSWSC 1330 Hearing dates: 3 September 2013 Decision date: 16 September 2013 Jurisdiction: Equity Division Before: Hallen J Decision: (a) Orders, in the Probate proceedings, (2011/288478), that the Plaintiff is to pay the Defendants' costs, such costs to be calculated on the indemnity basis. (b) Orders, in the Probate proceedings, that any of the Defendants' costs not recovered from the Plaintiff, are to be paid out of the estate of the deceased. (c) Notes the agreement of the parties that for the purposes of assessment of costs, the costs of the Defendants of the Probate proceedings and of their costs of the family provision proceedings should be apportioned equally between the two proceedings. (d) Orders, in the family provision proceedings (2010/213650), that the first Plaintiff is to pay the Defendants' costs calculated on the ordinary basis. (e) Orders, in the family provision proceedings, that the balance of the Defendants' costs, calculated on the indemnity basis, as well as any costs not recovered from the first Plaintiff, are to be paid out of the estate of the deceased. (f) Orders that the costs payable by the Plaintiff, in each of the proceedings, until paid, is to constitute a charge on the Plaintiff's entitlement under the 2008 Will of the deceased. (g) In the event that the Plaintiff's interest in "Mimbil" is transmitted to him, the Defendants may lodge a caveat on the Plaintiff's interest in that property pending the payment of the costs of both proceedings as have been ordered to be paid. (h) That there be no order for costs of the second Plaintiff in the family provision proceedings, to the intent that it will pay its own costs of the proceedings. (i) Notes the orders made by consent on 24 May 2013 with regard to the occupation by the Plaintiffs of the estate realty known as "Keera" and notes that there was established NAB internet banking xxxx ("the bank account") in the name of the parties. (j) Orders that the proceeds of the bank account be paid to the Defendants within 14 days of the date hereof. Catchwords: Procedure - Costs in unsuccessful claim in Probate suit and in family provision proceedings - Whether to depart from the general rule that costs calculated on ordinary basis be paid by unsuccessful Plaintiff - Whether to order costs of Probate suit on indemnity basis - No dispute that unsuccessful Plaintiff should pay costs calculated on ordinary basis of family provision proceedings - Overall justice of the case Legislation Cited: Civil Procedure Act 2005 Succession Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Australiawide Airlines Limited t/as Regional Express v Aspirion Pty Limited [2006] NSWCA 365 Bolger v McDermott [2013] NSWSC 919 Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 Harkness v Harkness (No 2) [2012] NSWSC 35 Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84; [2010] FCAFC 5 Kazar (liquidator) v Kargarian; Re Frontier Architects Pty Ltd (in liq) [2011] FCAFC 136; (2011) 284 ALR 237 Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of the late Jocelyn Estephan) [2009] NSWCA 161 Ohn v Walton (1995) 36 NSWLR 77 RDCW Diamond (Pty) Limited v Da Gloria [2007] NSWSC 1325 Wilcox, Re; Ex parte Venture Industries [1996] FCA 1942; (1996) 72 FCR 151 Category: Costs Parties: Paul Anthony Bolger (first Plaintiff) Aus Scrap Metal Recyclers Pty Limited (second Plaintiff) Joanne Margaret McDermott (first Defendant) Nicholas Timothy Bolger (second Defendant) Representation: Counsel: Mr R Wilson (Plaintiff) Mr L Ellison SC (Defendants) Solicitors: Resolve Legal (Plaintiff) Watson McNamara & Watt (Defendants) File Number(s): 2010/213650; 2011/288478