Misek v McBride (No. 2) [2017] NSWSC 796

Supreme Court New South Wales

Medium Neutral Citation: Misek v McBride (No. 2) [2017] NSWSC 796 Hearing dates: 7 June 2017 Date of orders: 20 June 2017 Decision date: 20 June 2017 Jurisdiction: Equity Before: Slattery J Decision: The plaintiff's offer of compromise served on 3 March 2016 is compliant with UCPR, r 20.26. Defendant is ordered to pay out of the estate the plaintiff's costs of the proceedings, including the costs of the costs argument, on the indemnity basis on and from 4 March 2016 and otherwise on the ordinary basis. But the defendant is only required to pay 80 per cent of the plaintiff's costs, on account of the defendant's success on each of the secret trust and constructive trust claims. Catchwords: COSTS – plaintiff successful – Court makes orders on 18 April 2017 for family provision by way of a legacy of $460,000 out of deceased's estate – plaintiff notifies a pre-trial offer of compromise to the defendant on 3 March 2016 in the sum of $349,000 plus costs "on a party - party basis", be paid out of the estate of the deceased - whether plaintiff's offer of compromise is compliant with UCPR, r 20.26 and entitles the plaintiff to an award of indemnity costs – whether the defendant's success on the two non-family provision issues, the secret trust and constructive trust claims, warrants any reduction in the costs awarded to the plaintiff, and if so by what amount. Legislation Cited: Succession Act 2006, Part 3 Uniform Civil Procedure Rules 2005, rr 20.26, 42.14 Cases Cited: Bostik Australia Pty Ltd v Liddiard (No. 2) [2009] NSWCA 304 Calderbank v Calderbank [1975] 3 All ER 333 James v Surf Road Nominees (No. 2) [2005] NSWCA 296 Elite Protective Personnel Pty Limited v Salmon (No. 2) [2007] NSWCA 373 Jojeni Investments Pty Ltd v Mosman Municipal Council (No. 2) [2015] NSWCA 208 McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306 Misek v McBride [2017] NSWSC 406 Shellharbour City Council v Johnson (No. 2) (2006) 67 NSWLR 308 Category: Costs Parties: Plaintiff: Kylie Anne Misek Defendant: Cheryl Patricia McBride Representation: Counsel: Plaintiff: L. Ellison SC Defendant: K. Burke