McDonald v O’Connor (No 2) [2019] NSWSC 344

Supreme Court New South Wales

Medium Neutral Citation: McDonald v O'Connor (No 2) [2019] NSWSC 344 Hearing dates: 21 March 2019 Date of orders: 02 April 2019 Decision date: 02 April 2019 Jurisdiction: Equity Before: Hallen J Decision: The Court:

(a) Orders pursuant to s 59 of the Succession Act 2006 (NSW), that the Plaintiff receive, by way of provision, out of the estate of Mavis Valerie McDonald, a lump sum of $45,000.

(b) Orders that the burden of the provision made for the Plaintiff be borne by the share of the estate passing to the Defendant.

(c) Makes no order for the Plaintiff's costs.

(d) Orders that the Defendant's costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.

(e) Orders that the exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW), rule 31.16A, and Practice Note SC Gen 18, Paragraph 26. Catchwords: SUCCESSION – FAMILY PROVISION – COSTS – following principal judgment in which a family provision order was made – Offer of Compromise served some months prior to the hearing – Plaintiff failed to obtain order more favourable than offer made – Nature and value of the estate of the deceased unclear, and not determined, until hearing – Whether overall justice of the case warrants exercise of the Court's discretion to "otherwise order" Legislation Cited: Civil Procedure Act 2005 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: AB v Curry (No 2) [2015] NSWSC 1209 Automotive Holdings Group Ltd v Prime Constructions Australia Pty Ltd (No. 2) [2019] NSWSC 315 Bates v Cooke (No 2) [2014] NSWSC 1322 Briggs v Mantz (No 2) [2014] VSC 487 Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266 Commonwealth of Australia v Gretton [2008] NSWCA 117 Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 Hinderry v Hinderry (No 2) [2016] NSWSC 1577 Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 McDonald v O'Connor [2019] NSWSC 261 Meres v Meres (No 2) [2017] NSWSC 523 Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344 Olsen v Olsen [2019] NSWSC 217 Pearson & Ors (The Joint Administrators of Lean Brothers International (Europe)) v Lehman Brothers Finance SA & Ors [2010] EWHC 3044 (Ch) Rogers v Rogers [2018] NSWSC 1982 Singer v Berghouse (1993) 114 ALR 52; [1993] HCA 35 Smith v Smith (No 2) [2011] NSWSC 1105 Smith v Whittaker [2016] VSC 287 The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] 67 NSWLR 706; [2006] NSWCA 120 Category: Costs Parties: Margaret May McDonald (Plaintiff) Fiona O'Connor (Defendant) Representation: Counsel: Mr A Lakeman (Plaintiff) Mr J E F Brown (Defendant)