Christopherson v Wright; Christopherson v Wright

Supreme Court of NSW|2024-09-27|Before: Pike J

JUDGMENT

On 9 September 2024, I delivered judgment in these proceedings: see Christopherson v Wright; Christopherson v Wright [2024] NSWSC 1144 (Principal Judgment). These reasons assume familiarity with and maintain the same defined terms as used in the Principal Judgment.
In the Principal Judgment, I determined that Shane should receive an order for provision in the sum of $300,000 and that Pamela and Craig's claims should be dismissed. I directed the parties to seek to agree orders to give effect to my findings in the Principal Judgment, including as to costs, and that failing agreement, to provide submissions and supporting material, whereupon I would determine any remaining issues on the papers.
The parties in the Shane proceedings were able to agree orders.
The parties in the Craig and Pamela proceedings were not able to agree orders. Craig and Pamela also sought to be heard on costs in Shane's proceedings and proposed certain orders.
Craig and Pamela also sought further substantial orders, purportedly pursuant to s 66 of the Act, which I separately consider below.
As such, these reasons determine the appropriate final orders in each of the proceedings.

Substantive orders sought by Craig

In addition to proposing costs orders, Craig also sought 13 additional orders, purportedly pursuant to s 66 of the Act. These orders were directed at what might loosely be described as finalisation of the estate of the Deceased and included: 1. the transfer of certain lots by the estate to Craig in partial distribution of his legacy under the Will; 2. an order restraining Sharon, as executor, from continuing with the proposed subdivision and an order that she personally pay the costs incurred in relation to that subdivision; 3. orders to the effect that the estate pay Pamela half of the assessed value of the House Block; 4. orders effecting the sale of the remainder of the lots comprising the Vale; 5. orders for a clearance sale to be conducted of all farming machinery and the like; and 6. orders for a final distribution to be made.
Craig sought to rely on a further affidavit made by him in support of these orders.
In support of these orders, it was contended that Craig had previously sought the transfer of the lots to him and expected that Sharon would agree but she has not. These lots are asserted to be necessary for the conduct of Craig's business. As regards the proposed subdivision, Craig continued to assert that Sharon was behaving wrongly as executor in pursuing it. As regards Pamela, the contention is the orders sought are, in effect, the only method she has to extract herself from her present position.
The estate opposed all of these orders and objected to Craig having leave to rely on his further affidavit in the absence of any application to reopen. The estate raised a number of matters including that none of the matters raised were pleaded, s 66 does not provide a source of power for the orders and they fail for want of evidence in any event.
There is no basis for the Court to grant any of the 13 orders sought by Craig and Pamela. They extend beyond the orders made in the Principal Judgment. The proposed substantive orders do not seek to give effect to the conclusions reached in the Principal Judgment. Rather, in relation to the transfer of the lots to Craig and the orders sought in relation to the subdivision, they seek to reagitate matters which were sought to be argued by way of proposed amendment during the hearing, which matters were not pursued.
The orders now sought should have been squarely raised prior to the hearing so they could have been dealt with. Most, if not all, would likely have been the subject of evidence. It is not appropriate to raise them now. No application to reopen has been made.
Although not necessary to decide, it is also far from clear that s 66 of the Act provides a basis for the Court to make the orders sought. Craig's provision claim has been dismissed. It is also not necessary to make any of the orders to give effect to the order for provision made in Shane's favour.
I therefore decline to make any of the additional orders sought.

Pamela's application under the slip rule

Pamela also sought an order that, pursuant to r 36.17 UCPR, all references to "daughter-in-law" and "father-in-law" be removed from the Principal Judgment. It was contended that these references were wrong and caused deep offence.
The term "daughter-in-law" was used once in the catchwords and the term "father-in-law" was used once at [192] of the Principal Judgment in relation to a proposition put to Pamela in cross-examination.
No offence was intended by the use of these expressions. They were intended to reflect the reality of the relationship and the reference at [192] reflects the proposition put. Craig admitted the relationship of the Deceased and Pamela was that of de facto father and daughter-in-law. Pamela also admitted this on at least one occasion in cross-examination. There is thus nothing to correct.
I now turn to consider the costs orders.

Relevant legal principles as to costs

The relevant legal principles in relation to costs are not in dispute. The starting point is s 98 of the Civil Procedure Act 2005 (NSW), which provides that the issue of costs is in the broad discretion of the Court.
I recently summarised the relevant legal principles in relation to costs orders in family provision cases where offers of compromise have been made in Bradley v Irvine; Irvine v Irvine (No 2) [2024] NSWSC 931 at [19]ff. I do not propose to repeat what I there said.

Determination on costs

It is appropriate to separately consider the two sets of proceedings. Although they were heard together, Shane did not take an active role in relation to Pamela's claim.
In relation to Shane's proceedings, the orders agreed between Shane and the estate should be made.
The principal matter raised by Craig - the offer dated 1 July 2024 - does not assist Craig. The simple point is that Shane has done better than the offer in the proceedings.
The offer proceeded on an assumed basis that Shane's costs were $75,000. This was not correct. Ignoring costs, the offer was to pay Shane $250,000 by way of provision. The Court awarded him $300,000.
In those circumstances, there is no reason why Shane's costs should not be paid out of the estate on the ordinary basis. It is not appropriate in the circumstances, and on the material before the Court, to cap Shane's costs.
There is no reason why the estate's costs should not be paid out of the estate on the indemnity basis.
In the Craig and Pamela proceedings, the orders sought by the estate, as set out above, but with one exception, should be made. The exception concerns the order against Pamela. In circumstances where Shane did not play any active role in Pamela's proceedings, Pamela should only be ordered to pay the first defendant's costs.
Insofar as Craig contends that the 1 July 2024 offer should have been accepted by Shane, thus removing the need for Craig to seek to uphold the release or raise his circumstances as a competing claimant, I have dealt with this above. Shane has done better than the offer.
Contrary to his submission, Craig was seeking a financial advantage in contending that the release be upheld. Craig was not duty bound to seek to uphold the release. He did not do so in Darien's earlier claim. He raised this issue at his risk, and he lost. Given the value of the Deceased's estate and Craig's individual financial position, Craig's contentions were always difficult to maintain. Craig's ready concession in cross-examination reflects this. There is no reason why costs should not follow the event.
Similarly, Craig raised his circumstances as a competing claimant and contending that any provision for Shane should come from Sharon, at his risk. Craig effectively abandoned these contentions in his answers in cross-examination and they did not succeed. There is no reason why costs should not follow the event.
Insofar as Pamela is concerned, it is not correct to characterise her position as an innocent bystander. Pamela pursued her estoppel claim against the estate in her own interest. She failed in establishing this claim. Again, there is no reason why costs should not follow the event. There is no reason why an order should be made against Craig and not Pamela, even if Craig has suggested this. There is nothing to prevent Craig satisfying Pamela's liability if he wishes to do so.
It is also not correct to characterise these proceedings as being entirely due to the conduct of the Deceased. Craig and Pamela pursued claims in their own interests and did not succeed. There is no reason why they should not pay the costs. Such orders reflect the overall justice of the proceedings.
In proceedings 2023/00057431, the orders of the Court are: 1. Provision to be made for the plaintiff out of the Deceased's estate in the amount of $300,000. 2. Plaintiff's costs be paid out of the Deceased's estate on the ordinary basis. 3. Defendant's costs be paid out of the Deceased's estate on the indemnity basis.
In proceedings 2023/00094925, the orders of the Court are: 1. First plaintiff's claim dismissed. 2. First plaintiff to pay the defendants' costs of the first plaintiff's claim. 3. Second plaintiff's claim dismissed. 4. Second plaintiff to pay the first defendant's costs of the second plaintiff's claim. 5. First defendant's costs to be paid out of the Deceased's estate on the indemnity basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2024

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