Fumeaux v Hughes [2018] NSWSC 1167

Supreme Court New South Wales

Medium Neutral Citation: Fumeaux v Hughes [2018] NSWSC 1167 Hearing dates: 27 July 2018 Date of orders: 27 July 2018 Decision date: 27 July 2018 Jurisdiction: Equity - Applications List Before: Kunc J Decision: No order as to costs Catchwords: COSTS – parties settled proceedings and motions before hearing – No issue of principle Cases Cited: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Category: Costs Parties: Gary Fumeaux (Plaintiff) Michelle Louise Hughes (Defendant) Representation: Counsel: S Bilbe-Taylor (Solicitor) (Plaintiff) M J Davis (Defendant)

Solicitors: BTF Lawyers (Plaintiff) Madison Marcus Law Firm (Defendant) File Number(s): 2017/358403 Publication restriction: No

EX TEMPORE Judgment (REVISED) 1. These proceedings concern the administration of a testamentary trust. The plaintiff and the defendant are brother and sister. The plaintiff is a beneficiary of the trust and the defendant is the trustee. The defendant is also named as a beneficiary of the trust. 2. The parties came into dispute. On 27 November 2017 the plaintiff filed his summons. He did so at a time when he was legally unrepresented. The relief sought in that summons was for an accounting in relation to the estate. 3. Directions were made over a period of time for the filing of a further amended summons. They were not complied with and it took some time after a directions hearing on 12 February 2018 for the plaintiff to file an amended summons. It appears from the Court file that a document entitled further amended summons was filed on 26 June 2018. 4. In the meantime, the parties had filed competing notices of motion. On 16 May 2018 the defendant filed a notice of motion seeking to have a subpoena to produce issued by the plaintiff set aside and for the plaintiff's summons to be struck out or alternatively orders made in the nature of security for costs. 5. On 1 June 2018, now with the benefit of legal representation, the plaintiff filed a notice of motion seeking relief including that the proceedings be referred to mediation. 6. Those notices of motion were listed for hearing before me today in the Applications List. 7. The parties have, if I may respectfully say so, very sensibly settled their differences in a way which will permit the Court to dismiss the further amended summons and each party's notice of motion. 8. The only question that has been presented for me to determine is that of costs. The plaintiff says that there ought to be no order as to costs. The defendant seeks his costs. 9. Disputes such as these, particularly between siblings, are always unfortunate. In the Court's experience there is usually a considerable history behind them which goes far deeper than what is disclosed by the evidence in any particular application or the substance of the particular legal remedy sought. 10. While the Uniform Civil Procedure Rules provide that generally costs should follow the event, that is not always the case where parties are able to resolve their dispute without it going to a final hearing. In the absence of a hearing on the merits, the Court will generally exercise its discretion to order that each party pay its own costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622. In determining the question of costs, the Court is not encouraged to embark on a consideration of the likely outcome of the matters which have been resolved. 11. That course seems to me to be particularly apposite in this case. No interest will be served by attempting to analyse the merits and to do as would be contrary to the just, quick and cheap resolution of the remaining dispute between the parties. I am satisfied that it is appropriate that the approach supported by the decision of the High Court in Lai Qin should apply. 12. For that reason, the Court declines to make any order as to the costs of the proceedings or the motions.