Squire v Squire (No 2) [2019] NSWCA 120

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Squire v Squire (No 2) [2019] NSWCA 120 Hearing dates: On the papers Date of orders: 22 May 2019 Decision date: 22 May 2019 Before: Macfarlan JA Meagher JA Simpson AJA Decision: (1) Appeal allowed.

(2) Set aside orders 1, 2, 3 and 4 made by Kunc J on 4 May 2018 and entered on 7 May 2018, this order not to affect the costs order made by Hallen J on 14 November 2016.

(3) Order that the amount held by the respondent in the ING account, and representing the deceased's share of the proceeds of sale of the Baulkham Hills property, together with accrued interest, be designated as notional estate of the late Richard Squire.

(4) Order pursuant to Succession Act 2006 (NSW), s 59 that an amount of $85,000 be paid from that fund to each of the appellants, together with interest should either amount not be paid before 10 June 2019. Any such interest is to be calculated at the same rate as the rate at which interest is currently accruing on the amount held in the ING account.

(5) The appellants' costs of the proceedings below, assessed on the ordinary basis up to and including 14 November 2016 and on an indemnity basis thereafter, and subject to an overall cap of $50,000, are to be paid out of the notional estate.

(6) The appellants' costs of the appeal, assessed on the ordinary basis and capped at $31,000 are to be paid out of the notional estate.

(7) The respondent, if otherwise qualified, is to have a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: COSTS – appeals – appellants made Calderbank offer in relation to proceedings at first instance – offer rejected – no separate offer made in relation to costs of appeal – costs of appeal determined by reference to outcome of appeal – appellants' recoverable costs capped Legislation Cited: Succession Act 2006 (NSW), s 59 Suitors' Fund Act 1951 (NSW) Cases Cited: Bathurst Regional Council v Thompson (No 2) [2012] NSWCA 420 Gray v Hobson (No 2) [2018] NSWCA 131 McKeith v Royal Bank of Scotland Group PLC (No 2) [2016] NSWCA 260 Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Category: Costs Parties: Paul Francis Aubrey Squire (First Appellant) Claire Louise Isobel Beech (Second Appellant) Corinne Ann Squire in her capacity as executrix of the estate of the late Richard Squire (Respondent) Representation: Counsel: AG Martin, MA Tovey (Appellants) P Glissan (Respondent)