Noelle Elizabeth Hillman v Lynda Box, Debrah Box and Skye Box as Executors of the Estate of Graeme William Box

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 26 June 2014
• Court: Supreme Court of ACT
• Docket Number: No. SC 564 of 2010
• Date: 26 June 2014

[2014] ACTSC 150

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SC 564 of 2010

Between:

Noelle Elizabeth Hillman

Plaintiff

and

Lynda Box, Debrah Box and Skye Box as Executors of the Estate of Graeme William Box

Defendants

Counsel for the plaintiff: Mr D A Hassall

Counsel for the defendant: Dr C Ward and Mr G Theakston

AGC (Advances) Ltd v West (1984) 5 NSWLR 301

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300

Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2006] NSWSC 583

Becker v Queensland Investment Corporation (No 2) [2009] ACTSC 147

Brymount Pty Ltd t/a Watson Toyota v Cummins (No 2) [2005] NSWCA 69

De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207

Dobb v Hacket [1993] 10 WAR 532

Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd [2000] FCA 602

Dzundza v Nielsen [2013] ACTSC 220

Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322

EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59

Financial Integrity Group Pty Ltd v Farmer (No 4) [2014] ACTSC 145

Ford Motor Company of Australia Ltd v Lo Presti (2009) 41 WAR 1

Frankenburg v Famous Lasky Film Service Ltd [19431] 1 Ch 428

Giles v Randall [1915] 1 KB 290

Goodwin v Storrar [1947] KB 457

Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435

Hillman v Box (No 4) [2014] ACTSC 107

J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23

Jones v Trad (No 3) [2013] NSWCA 463

Latoudis v Casey (1990) 170 CLR 534

Lyon v Lyon [1953] P 1

Mainteck Services Pty Ltd v Stein Heurtey SA [2013] NSWSC 1165

Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434

Ng v Chong [2005] NSWSC 385

Quirk v Bawden (1992) 112 ACTR 1

Re Adamow (deceased) (1989) 97 FLR 410

Re Marsland & Marsland [1902] St R Qd 219

Savvaki v Papagyriou [2008] NSWSC 922

Sherborne Estate (No 2); Vanvalen v Neaves (2005) 65 NSWLR 268

Singer v Berghouse (1993) 114 ALR 521

Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97

Smith v NSW Bar Association (1992) 176 CLR 256

The National Safety Council (in liquidation) (No 2) [1992] 1 VR 485

Underwood v Underwood [2009] QSC 107

Walsh v Walsh (No 2) [2013] NSWSC 1281

Woolnough v Public Trustee (No 2) [2005] TASSC 102

Family Provisions Act 969 (ACT)

Supreme Court Act 1933 (ACT), s 37E(4)

Court Procedures Rules 2006 (ACT), r 1721

Supreme Court Rules 1970 (NSW), Pt 52, r 30

Rules of the Supreme Court 1965 (UK), O 62 r 28

Halsburys Laws of England (4 ^th ed, v 32

PROCEDURE — Costs — Whether order can be amended after being made — Order not perfected — Application to re-open costs — Costs do not necessarily follow event in family provision cases — ‘Calderbank letter’ — Plaintiff not given reasonable time to consider offer — ‘Calderbank letter’ not to be considered in assessing costs due to lack of unreasonableness in rejecting offer

ORDER

THE COURT ORDERS THAT:

1. 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.

1 On 28 May 2014, I made orders which made provision for Noelle Hillman, the plaintiff, out of the estate of the late Graeme William Box (the Estate) but otherwise dismissed her claims: Hillman v Box (No 4) [2014] ACTSC 107.

2 I ordered that the costs of the defendants be paid out of the Estate on a trustee basis.

3 As Ms Hillman had only been partially successful, I did not consider that she should have all her costs. I said in the decision:

411. I do not consider, however, that Ms Hillman should receive all her costs. I am mindful that she has had some success and had to take the proceedings in order to obtain that success. Nevertheless, she had made a large number of claims which occupied the majority part of the proceedings on which she has failed.

412. I would propose, subject to any contrary submissions, to allow her out of the estate one-fifth of her costs on a common fund basis.

4 Accordingly, I gave the parties leave to make submissions as to the costs order that should be made in relation to Ms Hillman's costs.

5 Ms Hillman advised me that she had no contrary submissions as to the order that should be made and that the order I proposed should be made.

6 The defendants, Lynda Box, Debrah Box and Skye Box, have, however, submitted that a different order should be made. In particular, the defendants submitted that Ms Hillman pay the defendants' costs from 11 December 2012.

7 Ms Hillman then made submissions in reply which suggested that these submissions of the defendants were misconceived.

8 While Ms Hillman accepted that the order I made as to the defendants' costs was ‘made in the proper and appropriate exercise of the Court's discretion as to costs’, the order I proposed in [412] of my reasons for judgment was also ‘the appropriate orders as to the Plaintiff's costs’.

9 When delivering judgment and to give effect to my order that the parties be heard as to the plaintiff's costs, I did give directions that Ms Hillman make any submissions within seven days and that the defendants' reply within seven days.

10 Ms Hillman made her submissions on 4 June 2014, within the seven days; the defendants made their submissions on 12 June 2014, one day outside the further seven days. In the circumstances, I am not prepared to reject them on this account. Indeed, the further submissions of Ms Hillman were sought by me within a further seven days but an extension was sought and granted as counsel was unavailable.

11 Ms Hillman submitted that

the Defendants, not having raised any issue about the costs of the Defendants as ordered on 28 May 2014 and having regard to the fact that the Court expressly made its Orders in that regard and only ordered that “the parties be heard as to the costs of the Plaintiff”, it is not appropriate for the Defendants to now seek to raise issues about this Honourable Court's Orders made on 28 May 2014 as to the Defendants” costs; and thus the purported “ Calderbank Offer” attached to the Defendants” submissions on costs ought not be received as to those costs.

12 I found this difficult to understand, but I apprehend that what is being submitted that, since I had already made provision for the defendants' costs, namely to be paid out of the Estate, I could not, now, make a different order, namely that part of these costs be paid by Ms Hillman.

13 I do not accept that, in the circumstances, this is correct. While I did make an order for the payment of the defendants' costs out of the Estate, that order has not been perfected and can be recalled. See Financial Integrity Group Pty Ltd v Farmer (No 4) [2014] ACTSC 145 at [7]. The order has not been perfected in this matter.

14 The grounds on which a court may re-open an order even before it has been perfected are not at large. They are confined, as suggested by the High Court in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, though the court was there divided on the exact limits of that jurisdiction and the rationale for its exercise. In that decision, Mason CJ suggested (at 302) that the power could be exercised where there had been a misapprehension of the facts or the law and Gaudron J suggested (at 322) that this power may be exercised if the interests of justice so require.

15 In Smith v NSW Bar Association (1992) 176 CLR 256 at 265, Brennan, Dawson, Toohey and Gaudron JJ held that the power could be exercised if ‘there is some matter calling for review’.

16 R D Nicholson J set out in Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434 at 439–40; [20] the tests to be applied on such an application, discerned from an analysis of the authorities.

17 In De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207, the High Court considered whether it could re-open a costs order where there was no consideration of what might be regarded as a relevant regulation (which the Court held did not bind the High Court) and held it could do so.

18 There is no doubt that the power should be exercised rarely and sparingly. In De L v Director-General, NSW Department of Community Services (No 2) at 223, Toohey, Gaudron, McHugh, Gummow and Kirby JJ, said

Even if the foregoing conclusions, which require the dismissal of the application, had been different, a question would remain whether, in the exercise of its discretion, the Court should vacate its earlier order. It is one thing to permit reopening of the orders to allow consideration of a matter accidentally overlooked so that it may be taken into account. It is another to provide relief where the party seeking it has, by its own confession, not done all that might have been done to raise the point when it was timely and appropriate to do so. Especially in this Court, judges are entitled to look to the parties, at least where they are legally represented, to defend their own interests and to alert the Court to any claimed immunities which rest upon legal provisions. That was not done here.

19 Although it would have been preferable for the defendants to have sought that I do not deal with costs until after judgment had been given ( Walsh v Walsh (No 2) [2013] NSWSC 1281 at [2]), I do not consider that the approach of the High Court as there explained, applies here. I gave no consideration as to whether there was any basis for an order that Ms Hillman pay the defendants' costs and counsel was not present at the handing down of the judgment. If the issue had then been raised, I have no doubt that I would have given consideration to the issue.

20 It does, however, require those persons, who appear when judgment is delivered, to be fully instructed as to issue that may...