Douglas v James (No 2) [2015] NSWSC 969

Supreme Court New South Wales

Medium Neutral Citation: Douglas v James (No 2) [2015] NSWSC 969 Hearing dates: On the papers Decision date: 22 July 2015 Jurisdiction: Equity Division Before: McDougall J Decision: See at [65]. Catchwords: COSTS – where defendants (and cross-claimant) wholly unsuccessful – delinquency – where one cause of action time-barred – where another dropped in substance at the hearing – where defence evidence voluminous and largely irrelevant – usual result of assessment on the indemnity basis – whether 'probate exception' applies – where non-adversarial approach was available to trustees but not utilised – consequence that proceedings were needlessly adversarial

COSTS – submitting appearances – where defendant filed a submitting appearance less than a fortnight before the hearing – where defendant highly active in preparation for, and support during, litigation – consequence that submitting defendant to be treated as an active defendant for costs purposes Legislation Cited: Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: BE Australia WD Pty Ltd (Subject to a deed of company arrangement) v Sutton (2011) 82 NSWLR 336 Clocchiatti v Pierobon [2014] NSWSC 488 Douglas v James [2015] NSWSC 299 Re Buckton; Buckton v Buckton [1907] 2 Ch 406 Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645 Murdocca v Murdocca (No 2) [2002] NSWSC 505 Oshlack v Richmond River Council (1998) 193 CLR 72 Seller v Jones [2014] NSWCA 19 Category: Costs Parties: Zeta Kathleen Douglas (First Plaintiff / First Cross-Defendant / First Respondent) Marea Gilbert (Second Plaintiff / Second Cross-Defendant / Second Respondent) David James (First Defendant / Cross-Claimant / Applicant) Janina Kik (Second Defendant / Sixth Cross-Defendant / Sixth Respondent) Trudy James (Third Defendant / Fifth Cross-Defendant / Fifth Respondent) Lyn Ison (Third Cross-Defendant / Third Respondent) Angela Webber (Fourth Cross-Defendant / Fourth Respondent) John Croce Palmieri (Seventh Cross-Defendant / Seventh Respondent) Representation: Counsel: L Ellison SC (Plaintiffs) R Dubler SC and M Dolenec (Defendants)