HIS HONOUR: Rachel Lee Wade ("the Defendant") is one of the three adult children of Colin Wade ("the deceased") and the executor of his Will, to whom Probate was granted by this Court on 18 December 2018. (Her siblings, Christopher John Wade, and Sandra Jane Van Aalst, were named as executors also, but they renounced Probate on 21 November 2018 and 22 November 2018 respectively.)
The Defendant has been named in proceedings commenced by Lilian Helen Brindley ("the Plaintiff"), a former spouse of the deceased, in which she seeks an order pursuant to s 59 of the Succession Act 2006 (NSW) ("the Act") for her "proper maintenance, medical expenses and advancement in life out of the estate and/or notional estate" of the deceased.
(The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009.)
By notice of motion filed on 11 February 2019, the Defendant seeks an order, pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4, that the Plaintiff's proceedings be dismissed and an order that she pay the Defendant's costs. These reasons concern the determination of the notice of motion.
The Defendant relied upon her affidavit affirmed 6 February 2019 and an affidavit of costs of her solicitor, Ms R Bird, affirmed 18 March 2019. She did not rely upon any additional evidence at the hearing of the notice of motion.
The Plaintiff, until the commencement of the hearing, relied upon her principal affidavit sworn 10 December 2018 in support of the Summons, and an affidavit of costs sworn 8 February 2019, of her solicitor, Mr D Fitzpatrick. (In answer to a question by the Court, counsel stated that the Plaintiff had entered a conditional costs agreement, a matter that had not been disclosed in Mr Fitzpatrick's affidavit. As I have indicated in a number of other cases, where there is a conditional costs agreement, the party's lawyer should make specific reference thereto in any affidavit of costs sworn, or affirmed, and to be relied upon in the proceedings. In this case that was not done and no explanation was proffered in relation thereto.)
At the hearing, the Plaintiff tendered two small bundles of documents, the first comprising an application for Probate of the Will of Valerie June Wade, the mother of the deceased; the Probate of her Will made 24 September 2003; the Will itself; and the Inventory of Property attached to, and placed inside, the Probate document (Ex. NM1). The second bundle comprised a letter dated 8 February 2018 from the deceased's solicitors to the Plaintiff's solicitors enclosing an undated, and unsigned, "updated financial statement for the respondent husband" (Ex. NM2).
It appears that a copy of Ex. NM2 had been forwarded to the Associate to Judge Sexton of the Federal Circuit Court at the same time as it was sent to the Plaintiff's solicitors. (This is evidenced by the email addresses referred to at the top of the letter from the deceased's solicitor.)
Following the tender of these documents, Mr W Sharwood, counsel for the Defendant, sought a short adjournment to enable instructions to be obtained from his instructing solicitor and the Defendant. I acceded to the request to adjourn the proceedings to enable not only those instructions to be taken, but to also allow the legal representatives an opportunity to see if the whole of the proceedings could be settled.
Upon my return, Mr Sharwood frankly conceded that the Defendant's notice of motion could not succeed as there appeared to be facts in issue, the determination of which would need to be made at a final hearing. In my view, the concession made by counsel was appropriately made, and clearly reflected his understanding of the overriding duty of a legal practitioner to the Court and the obligation of all legal practitioners to comply with s 56 of the Civil Procedure Act 2005 (NSW).
The concession meant that no further time was spent on the notice of motion, enabled the Court to determine the issue of costs of the notice of motion immediately, and also to make directions for the further conduct of the proceedings.
On the issue of costs, Mr R Quickenden, counsel for the Plaintiff, submitted that claims for summary dismissal of a family provision proceeding rarely succeed, a fact that should have been appreciated by the Defendant. He accepted, however, that a claim for a family provision order is not immune from the application of UCPR rule 13.4 that it be summarily dismissed: Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104, per Lindsay J, at [103]. Naturally, he then submitted that the Defendant should be ordered to pay the costs of the notice of motion on the ordinary basis pursuant to UCPR rule 42.1 and that there were no reasons to suggest that the presumption that costs follow the event should be displaced.
Whether the notice of motion would have failed but for the tender of Ex. NM1 and Ex. NM2 does not have to, and cannot, be determined now. Those exhibits were tendered during the course of the hearing. Ex. NM2 was available well prior to the hearing, and the notice to produce which had prompted Ex. NM 1 to be produced, followed a matter raised by me at a directions hearing on 14 March 2019 (when the notice of motion was listed for hearing).
What is also clear, as seemed to be accepted, is that until the documents were tendered and the concession was made, neither party could have been certain of success, based solely on the evidence that had been read on the notice of motion. Once the documents were tendered, the Defendant did not spend any time persevering with the notice of motion and accepted the futility of doing so.
Even though I have remembered that the general rule that costs follow the event, and although there was a superficial, and immediate, attraction to the Plaintiff's submission, I consider that, as a matter of discretion, the Court, in this case, should make some other order as to the whole of the costs of the notice of motion. Bearing in mind the nature of the evidence that is likely to be required since the matter is to proceed to a final hearing, and considering the lack of evidence relied upon in the notice of motion, and taking into account all that occurred at the hearing of the notice of motion, I have concluded that the appropriate exercise of the discretion, and the just order is that the costs of the notice of motion should be the Plaintiff's costs in the cause of the substantive proceedings.
In this way, ultimately, if the Plaintiff is not successful, then she will not have to pay any of the Defendant's costs of the notice of motion; but nor will she recover her costs thereof. Nor will she have to pay the costs of the notice of motion to her own lawyers because of the conditional costs agreement entered into with those lawyers. If she succeeds, she will receive her costs of the notice of motion.
Following the announcement of the costs order I proposed, I was then able to make directions for the continuation of the proceedings.
The Court:
1. Orders that the Defendant's notice of motion filed on 11 February 2019 be dismissed.
2. Orders that the costs of the notice of motion be the Plaintiff's costs in the cause.
3. Makes no order as to the Defendant's costs of the notice of motion.
4. Notes that the notice of motion was brought with the consent of all beneficiaries.
5. Directs the Defendant to serve the affidavits required by Paragraph 9 (excepting Paragraph 9.3) of Practice Note SC Eq 7 by 4:00 p.m. on 11 April 2019.
6. Directs the Plaintiff to serve any further affidavits in chief (other than an affidavit by Mr D Fitzpatrick) by 4:00 p.m. on 11 April 2019.
7. Directs the Defendant to serve any evidence (other than the affidavits to which reference has been made) by 4:00 p.m. on 26 April 2019.
8. Directs each party to serve any evidence in reply to affidavits served after 21 March 2019 by 4:00 p.m. on 14 May 2019.
9. Directs that each party's legal representative is to serve on the party a notice that specifies:
1. An estimate of the best outcome that the party is likely to achieve if the party is successful;
2. An estimate of the worst outcome that the party is likely to undergo if the party is unsuccessful; and
3. An estimate of the largest amount by way of costs that the party may be ordered to pay if the party is unsuccessful,
such notification to be made by letter sent no later than 4:00 p.m. on Friday, 29 March 2019.
1. Stands the matter over for further directions before the Family Provision List Judge on Friday, 17 May 2019.
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Decision last updated: 22 March 2019