Carr v Douglass (No. 2) [2016] NSWSC 1367

Supreme Court New South Wales

Medium Neutral Citation: Carr v Douglass (No. 2) [2016] NSWSC 1367 Hearing dates: 22 August and 19 September 2016 Date of orders: 28 September 2016 Decision date: 28 September 2016 Jurisdiction: Equity Before: Slattery J Decision: Plaintiff's motion for indemnity costs dismissed. Plaintiff to pay the third defendant's costs of the plaintiff's motion for indemnity costs. Catchwords: COSTS – indemnity costs – Uniform Civil Procedure Rules, r 42.14 – plaintiff successful in family provision proceedings – unsuccessful third defendant holds property declared to be notional estate of the deceased for the purposes of Succession Act, Chapter 3 – plaintiff serves offer of compromise – whether the result of the proceedings was no less favourable to the plaintiff than the plaintiff's offer of compromise – whether the Court should order indemnity costs – order for costs made on 24 June 2016 against the estate and notional estate of the deceased – motion for a special costs order filed on 19 September 2016 – whether the Court now has jurisdiction to make a special costs order, or is precluded from so doing by UCPR, r 36.16(3A). Legislation Cited: Civil Procedure Act 2005 (NSW), s 14 Succession Act 2006 (NSW), s 58(2) Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) Cases Cited: AT v Commissioner of Police (NSW) (No.2) [2010] NSWCA 337 Calderbank v Calderbank [1975] 3 WLR 586 Capital Finance Australia Ltd v Chief Executive Officer of Customs [2007] NSWSC 1368 Carr v Douglass [2016] NSWSC 854 Cooper v Kinsella (No.2) [2011] NSWCA 140 Deputy Commissioner of Taxation v Meredith (No. 2) [2008] NSWCA 133 DJL v Central Authority (2000) 201 CLR 226 Kable v State of New South Wales [2010] NSWSC 811 Kable v State of New South Wales (No.2) [2012] NSWCA 361 Katter v Melhem (2015) 90 NSWLR 164 Kekatos v Stafford [2009] NSWCA 219 Page v Page [2016] NSWSC 1218 Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (No.2) [2009] NSWCA 336 Singer v Berghouse [1993] HCA 35 Spina v Permanent Custodians Ltd (No.2) [2009] NSWCA 419 Category: Principal judgment Parties: Plaintiff: Tina Marie Carr First Defendant: Gordon Leslie Douglass Second Defendant: Nancy Pickering Third Defendant: Margaret Carr Representation: Counsel: Plaintiff: G.J. Smith Third Defendant: S.O'Brien