Noelle Elizabeth Hillman v Lynda Box, Debra Box and Skye Box as Executors of the Will of Graeme William Box (No 6)

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 29 February 2016
• Docket Number: File Number: SC 564 of 2010
• Court: Supreme Court of ACT
• Date: 29 February 2016

[2016] ACTSC 31

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Number: SC 564 of 2010

Noelle Elizabeth Hillman

(Plaintiff)

and

Lynda Box, Debra Box, Skye Box as Executors of the Estate of Graeme William Box

(Defendants)

Representation:

Counsel

Dr D Hassell (Plaintiff)

Mr M Tigwell (Defendants)

Cases Cited:

Burrell v The Queen (2008) 238 CLR 218

Calderbank v Calderbank [1976] Fam 93

Commonwealth v Davis Samuel (No 9) [2015] ACTSC 127

Noelle Elizabeth Hillman v Lynda Box, Debra Box and Skye Box as Executors of the Will of Graeme William Box (No 4) [2014] ACTSC 107

Noelle Elizabeth Hillman v Lynda Box, Debra Box and Skye Box as Executors of the Will of Graeme William Box (No 5) [2014] ACTSC 150

R v Gorman [2009] ACTSC 7

Shercliff v Engadine Acceptance Corp Pty Ltd (No 2) (1982) 3 BPR 9207

Legislation Cited:

Court Procedures Rules 2006 (ACT), Pt 6.2

Family Provisions Act 1969 (ACT)

PRACTICE AND PROCEDURE — Costs — costs of proceedings — costs of making submissions on discrete issue — construction of order — order not sealed — order not perfected

Decision:

• 1. The order made on 26 June 2014 be amended to read:

  That the plaintiff recover one fifth of her costs of the proceedings and the whole of her costs of the submissions as to costs from the assets of the Estate of the late Graeme William Box, such costs to be paid on a common fund basis.

• 2. There be no order for costs of and incidental to this mention.

Refshauge J

1 The simple Will made by Graeme William Box, who died on 23 November 2009, was the subject of complex and extended litigation.

2 In these proceedings, the plaintiff, who had been in a domestic relationship with Mr Box until 2006, commenced proceedings under the Family Provisions Act 1969 (ACT), claiming a provision from the estate of Mr Box, but then also claimed certain declarations and orders that would entitle her to certain assets that otherwise would form part of the estate.

3 On 28 May 2014, I made provision in the sum of $50,000 for the plaintiff out of the estate but otherwise dismissed her claims. See Noelle Elizabeth Hillman v Lynda Box, Debra Box and Skye Box as Executors of the Will of Graeme William Box [2014] ACTSC 107 ( Hillman v Box (No 4)).

4 I ordered that the defendants' costs be paid out of the estate on a trustee basis, the conventional order for the executors and beneficiaries in a matter of this kind. I proposed an order for the plaintiff's costs ( Hillman v Box (No 4) at [412]) and invited submissions on that order.

5 The plaintiff initially indicated that she made no ‘contrary submissions’ to the order I proposed. The defendants, however, submitted that they should have their costs from 11 December 2012, when they sent to the plaintiff's solicitor a letter which purported to be a ‘Calderbank letter’ (see Calderbank v Calderbank [1976] Fam 93) or, alternatively, that the plaintiff bear her own costs. The plaintiff then made extensive submissions opposing the orders sought by the defendants.

6 On 26 June 2014, I held that the letter of 11 December 2012 from the defendants' solicitors to the plaintiff's solicitors was not a ‘Calderbank letter’ and that, in any event, the plaintiff was not acting unreasonably in rejecting the offer it contained. Instead, I ordered:

That one fifth of the plaintiff's costs including the costs of the submissions as to costs be paid on a common fund basis out of the assets of the Estate of the late Graeme William Box.

See Noelle Elizabeth Hillman v Lynda Box, Debra Box and Skye Box as Executors of the Will of Graeme William Box (No 5) [2014] ACTSC 150 ( Hillman v Box (No 5)).

7 The parties, however, could not agree on the construction of this order. The plaintiff says that she is entitled to one fifth of her costs of the proceedings, as clearly ordered, but her costs of the costs submissions in full.

8 The defendants say that, under the order I made, the plaintiff is only entitled to one fifth of her costs of the proceedings and also one fifth of the costs of the costs submissions.

9 Initially, the plaintiff's solicitors wrote to me, seeking clarification of the order. Although they did send a copy of their letter to the defendants' solicitors, I did not receive any communication from them.

10 In any event, it was not really appropriate to deal with this matter by correspondence. The ordinary approach to such a matter is to move the court for orders. An Application in Proceedings under Pt 6.2 of the Court Procedures Rules 2006 (ACT) would be the conventional and apt way of proceeding.

11 Accordingly, I listed the matter for mention and, if the parties were ready, for submissions.

12 The order for costs has not been sealed by the Registrar. Accordingly, the court may, in an appropriate case, recall it and amend it. That is explained in Burrell v The Queen (2008) 238 CLR 218 at 224; [20], in which it was identified that:

the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion.

13 That approach has been followed in this jurisdiction. See Commonwealth v Davis Samuel (No 9) [2015] ACTSC 127; R v Gorman [2009] ACTSC 7.

14 The precise circumstances in which an order is perfected in this jurisdiction may, I suggested in Brennand v Hartung (No 3) [2015] ACTSC 149 at [12]–[16], not be entirely clear.

15 In my view, however, the order has not been perfected in this case and so may be recalled and amended or altered.

16 The parties...