Johnston v Johnston

[2016] NSWCA 52

NSW Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Offers of compromise
3. › Acceptance of offer
4. › Costs consequences where offer accepted and no provision for costs
5. › Mixed offer proposing judgment in favour of both plaintiff and defendant
6. › Whether UCPR r 42.13A applies to mixed offers
7. › Uniform Civil Procedure Rules 2005 (NSW), r 42.13A
1. Costs
2. › Probate proceedings
3. › Costs following settlement of contested probate proceedings
4. › Exceptions to general rule that costs follow the event
5. › Where testamentary capacity in issue
6. › Civil Procedure Act 2005 (NSW), s 98
1. Appeal
2. › Leave to appeal on costs
3. › Whether substantial wrong or miscarriage occasioned
4. › Whether remittal appropriate where cost disproportionate to amount in dispute
5. › Supreme Court Act 1970 (NSW), s 101(2)(c)
6. › Uniform Civil Procedure Rules 2005 (NSW), r 51.53

Quick Take

UCPR r 42.13A does not apply to a 'mixed offer' of compromise that proposes judgment in favour of both the plaintiff and the defendant. Where such a mixed offer is accepted, the court retains the general costs discretion under s 98 of the Civil Procedure Act 2005 (NSW). Practitioners making offers of compromise in probate proceedings should be aware that an offer combining consent to probate with payment of money to the opposing party will likely be characterised as a mixed offer falling outside r 42.13A.