Schneider v Kemeny; Kemeny v Schneider (No 2)

1. [1]

   HER HONOUR: On 13 May 2021, I gave judgment in these proceedings, dismissing the plaintiff’s claim for family provision and, in parallel possession proceedings, extended the plaintiff’s rent-free period in the testator’s apartment for 28 days beyond delivery of my judgment: Schneider v Kemeny [2021] NSWSC 524. I requested the parties to bring in short minutes of order giving effect to my reasons within 14 days, also then notifying any errors and omissions.

2. [2]

   The parties were unable to agree on orders. Competing short minutes of order were submitted, accompanied by written submissions. I heard further argument from the parties’ senior counsel on 8 June 2021 and made orders which are reproduced at the end of this judgment. Whilst neither party then required written reasons, the executor subsequently requested same. These are my reasons for the orders made yesterday. I have used the same terminology as in my principal judgment.

FACTS

1. [3]

   On 20 August 2019, the executor commenced possession proceedings against the plaintiff. On 13 September 2019, the plaintiff commenced family provision proceedings, supported by the plaintiff’s first substantive affidavit. Orders were made for mediation. On 8 October 2019, Ward CJ in Eq appointed 27 November 2019 as the date for mediation before Mr CF Hodgson.

2. [4]

   In November 2019, affidavits were filed on behalf of the executor in the family provision proceedings, including by Mr Kemedy, Michael and Deborah Rutstein, being the solicitor who took Ms Kemeny’s instructions and prepared her last two Wills.

3. [5]

   The mediation was unsuccessful. On 2 December 2019, the plaintiff served an offer of compromise, agreeing to accept $1.55 million together with a right to reside in Ms Kemeny’s apartment until payment or sale of the apartment and payment of his costs of both the possession and family provision proceedings.

The offer

1. [6]

   On 24 December 2019, at 1.39 pm, the executor served an offer of compromise, offering to pay the plaintiff $1,000,001 together with a further two months’ accommodation in the apartment, and the plaintiff’s costs of the possession proceedings. The offer was open for acceptance until noon on 21 January 2020. Rule 42.13A of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) had the consequence that, if the plaintiff accepted the offer, he was also entitled to an order for his costs of the family provision proceedings assessed on the ordinary basis up to the time when the offer was made. The offer was not accepted.

2. [7]

   In early 2020, the parties continued to file and serve their substantive affidavits and, on 26 May 2020, Ward CJ in Eq listed both proceedings for hearing on 9 November 2020 for seven days before me. On 8 July 2020, the plaintiff served a second offer of compromise, offering to accept $1.7 million. On 2 November 2020, shortly before the hearing commenced, the plaintiff served a third offer of compromise, offering to accept $1.2 million.

SUBMISSIONS

1. [8]

   The executor sought an order that the plaintiff pay the executor’s costs on the ordinary basis up to 7 January 2020 and on the indemnity basis thereafter, given the non-acceptance of the executor’s offer of compromise. As the offer of compromise was served on Christmas Eve, the executor sought indemnity costs from two weeks later, being 2 January 2020.

2. [9]

   The plaintiff sought that there be no order made in respect of his costs of the possession and family provision proceedings, with the result that he pay his own costs.

Executor’s submissions

1. [10]

   The executor submitted that prima facie, pursuant to UCPR, rule 42.1 costs “follow the event”. There was nothing exceptional about this case that any other order should be made. This is not a case where the plaintiff was impecunious or received no benefit from the deceased’s estate or was made an unreasonable offer. When the offer of compromise was served, the plaintiff’s affidavit in chief had been served for more than three months. His circumstances were known. The narrative affidavits on behalf of the executor (being his, and those of the children of the deceased) had been served and consequently, the financial circumstances of the beneficiaries were known to the plaintiff. The offer took into account the facts and circumstances as represented by the plaintiff at the mediation.

2. [11]

   The offer was much more favourable to the plaintiff than the result he achieved. Given the size of the offer, the outcome of the proceedings, and the information available to the plaintiff at the time the offer was made, failure to accept the offer was unreasonable. The plaintiff had not filed any evidence to demonstrate it was not unreasonable for him to reject the offer. The executor’s senior counsel relied on Flanagan v Fisher [2021] NSWSC 598, where Kunc J referred to “the undoubted public policy interest in encouraging settlement by giving effect to Calderbank offers. As has been said by several Judges of this Division, the ordinary principles in relation to costs generally apply in family provision matters”: at [71].

3. [12]

   As to the possession proceedings, the executor submitted that he commenced the proceedings once the plaintiff had used his occupation of the deceased’s realty for a period longer than that contemplated under clauses 3(e) and 3(d) of the Will of the deceased. Notwithstanding the plaintiff’s experience as a Wills and Trustee practitioner, although he commenced his proceedings within the 12 month limitation period, he was in no hurry to commence those proceedings at all. The deceased died on 18 February 2019. The rent-free occupation expired on 19 August 2019. The Summons for possession was filed on 20 August 2019. The family provision Summons was filed on 13 September 2019. In December 2019, interim orders were made by consent with regard to the plaintiff’s occupation of the realty. Those orders were made in the context of the plaintiff seeking ownership of the realty at the forthcoming hearing. However, at trial, he abandoned any claim to the realty but sought a lump sum of between $1.5 million and $1.6 million. (To be fair to the plaintiff, the abandonment of his claim to the realty appeared referrable to events which had occurred not long before the hearing, being his unanticipated retirement and the fact that his mother had passed away, such that he now expected to receive an inheritance under her Will).

4. [13]

   The executor submitted that the plaintiff was not obliged to pay any occupation fee during his occupation of the estate realty but merely outgoings. The Offer of Compromise included provision for the plaintiff to have two months occupation of the estate realty once orders were made. This was more favourable than has been ultimately awarded by the Court. Further, the plaintiff had not lived at the realty for months at a time, revealed in updating material filed shortly before the trial.

5. [14]

   The executor submitted that the plaintiff’s misplaced appreciation of the strength of his case prevented the due and proper administration of the estate and, in particular, the sale of the realty. The executor was prima facie entitled to possession of the estate realty, he being obliged to collect the assets and in due course liquidate the estate for the benefit of the beneficiaries and, possibly the claimant. The right of the plaintiff to occupy the realty was an indulgence, more so when that right was not accompanied by an obligation to pay rent or licence fee. This constituted a benefit out of the estate of the deceased worth $106,000 which the plaintiff did not have to pay. In those circumstances, an order for possession being made, costs should follow the event.

Plaintiff’s submissions

1. [15]

   The plaintiff submitted that the executor’s offer of compromise did not comply with the rules as it was open for acceptance until noon on 21 January 2020 whilst a period of 28 days after the date of service of the offer expired at midnight on 21 January 2020. Accordingly, the offer was not an effective offer of compromise for the purposes of the UCPR and the terms of rule 42.15A of the UCPR have no effect, although may have significance as a Calderbank offer. Subject to the rules of Court, costs are in the discretion of the Court: section 98 Civil Procedure Act 2005 (NSW). The rules of court recognise an ultimate discretion in the Court by providing if the Court makes any order as to costs, it is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: rule 42.1 UCPR. The Succession Act 2006 (NSW) expressly provides that the Court may order that the costs of proceedings under the Chapter dealing with family provision claims for costs to be paid out of the estate of the deceased in such manner as the Court thinks fit: section 99.

2. [16]

   It was said to be notoriously difficult to predict family provision outcomes. A family provision claim is not quantifiable by the parties’ legal advisers prior to judgment with anything like the prescience possible in a claim for a liquidated sum such as contract debt or even in a claim for unliquidated damages for personal injury or for future economic loss, where there are statutory and judicial guidelines to guide estimation of damages. In family provision claims there is a large element of subjective assessment by the Judge. On any particular set of facts, inevitably there will be a variety of answers given by different judges: see Vanvalen v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003 at [56]-[58] per Palmer J.

3. [17]

   The parties in these proceedings made offers between $1 million and $1.7 million at various times to resolve the plaintiff’s claim. In assessing the reasonableness of the plaintiff’s conduct in not accepting the defendant’s offer, the plaintiff submitted that it should be borne in mind that the parties themselves exchanged offers at a level which was significantly different from the determined outcome of the case.

4. [18]

   The plaintiff submitted that the Court recognises that it may be appropriate to make costs orders in family provision proceedings which deviate from the usual course. In particular, family provision cases stand apart from cases in which costs follow the event. Costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position: Purnell v Tindale [2020] NSWSC 746 per Henry J at [333] citing Gaudron J in Singer v Berghouse [1993] HCA 35; (1993) 67 ALJR 708 at 709; Penfold v Predny [2016] NSWSC 472 per Hallen J at [167]. As noted in Singer v Berghouse, “there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate”: at 709.

5. [19]

   The Court found that the plaintiff’s net assets are some $1.46 million. The plaintiff’s costs and disbursements of these proceedings were $306,717. The executor’s legal costs were estimated at $313,302.20. Bearing his own costs will have a significant impact upon the plaintiff’s financial position. If the plaintiff were required to pay the executor’s costs at all, it would have a significant detrimental impact upon his financial position, leaving the plaintiff with $839,980 to provide accommodation for himself, to provide for his general living expenses during his retirement and to provide for the unforeseen contingencies in life. It was submitted that the overall justice of the case justifies the costs orders sought by the plaintiff.

6. [20]

   The plaintiff’s senior counsel also submitted that the family provision and possession proceedings were heard together and, in substance, the possession claim was part and parcel of the family provision claim so that the same costs order should abide, that is, the plaintiff should bear his own costs of the proceedings with the defendant’s costs to be paid out of the estate on an indemnity basis.

WAS THE OFFER A VALID OFFER OF COMPROMISE?

1. [21]

   Rule 20.26(5)(a) of the UCPR provides that, in order for an offer to comply with the rules, “the closing date for acceptance of an offer … is to be no less than 28 days after the date on which the offer is made.”

2. [22]

   Rule 1.11 of the UCPR provides:

3. [23]

   Applying rule 1.11(2), the day on which an offer of compromise is issued “is not to be counted”. This accords with section 36(1) of the Interpretation Act 1987 (NSW) in any event.

4. [24]

   Further, as Barrett J eloquently explained in Autumn Solar Installations Pty Ltd v Solar Magic Australia Pty Ltd [2010] NSWSC 463 at [8]-[10]:

5. [25]

   That is, the closing date for acceptance of an offer of compromise made on 24 December 2019 must be no less than 28 days after 24 December 2019, not counting 24 December 2019, and ending at midnight on the said closing date.

6. [26]

   The executor’s senior counsel submitted that there was a legitimate argument that, by closing the offer at noon on 21 January 2020, it was only one hour and forty minutes short of 28 days. Whilst arguable, it is also contrary to long-standing principle. Further, the offer was served at a time of year which makes me less inclined to construe the rule liberally in favour of the party making the offer. Presumably for the same reason, the costs order sought by the executor only sought indemnity costs from two weeks after the date of the offer.

7. [27]

   Thus, the offer of compromise does not comply with the rules. The prescribed consequences which follow from its non-acceptance do not follow here.

WHAT COSTS ORDER SHOULD BE MADE?

1. [28]

   As to an appropriate costs order to be made following an unsuccessful claim for family provision, the authors of John K de Groot and Bruce W Nickel, Family Provision in Australia (5th ed, 2016, LexisNexis) observe, “In recent years, the most common costs order in New South Wales when an application is dismissed is that the plaintiff pays the defendant’s costs, usually on a party-and-party basis … Cases in which the [unsuccessful] applicant is not required to pay the respondent’s costs were said to be rare in New South Wales in Ray v Greenwell [2009] NSWSC 1197 at [17].”: at [10.6] (some footnotes omitted). Whilst most jurisdictions adhere to a well-established practice that, generally speaking, on a failed application, there will be no order as to costs, “In New South Wales the cases suggest that the practice is more honoured in the breach than the observance … the normal rule is costs follow the event, no order as to costs is an exception and costs out of the estate is a rarity”: at [10.14].

2. [29]

   The principles in respect of costs orders in family provision matters were recently summarised by the Court of Appeal in Haertsch v Whiteway (No 2) [2020] NSWCA 287 per Macfarlan, Meagher and Leeming JJA at [4]-[11]:

3. [30]

   See also Smith v Moore (No 2) [2020] NSWSC 1640 per Williams J, who also relied on the passage from Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 cited in Haertsch v Whiteway (No 2), reproduced at [13] of her Honour’s judgment and also here:

4. [31]

   More recently, in Sarant v Sarant (No 2) [2020] NSWSC 1897, Hallen J summarised the case law at [29]-[39], concluding at [39]:

5. [32]

   Non-complying offers of compromise may amount to Calderbank offers with similar cost consequences if the plaintiff’s refusal to accept the offer was unreasonable in the circumstances. The executor’s offer was clearly a Calderbank offer.

6. [33]

   It is implicit in the submissions of the plaintiff’s senior counsel (at [17]) that the offers of compromise made by the plaintiff and the executor were in a ‘band’ which suggests that my judgment, dismissing the plaintiff’s application altogether, could not be predicted and is an ‘outlier’ (and thus, inferentially, wrong). The selection of the figure in an offer of compromise may reflect a number of factors including the executor’s assessment of the chance that the plaintiff may accept the offer; the executor’s expectation that on no account would the plaintiff accept the offer but nonetheless wishing to secure costs protection at a healthy level going forward; the parties’ respective assessment of the evidence then served; the parties’ assumptions as to how key witnesses will perform when giving evidence, and whether they will be accepted as witnesses of credit; the parties’ assumption that the plaintiff’s version of events will not be substantially undermined by documentary and affidavit evidence assembled thereafter. I cannot know the ingredients which produced the figure offered by the executor but, assuming it to be within the ‘band’ of outcomes predictable by learned senior counsel practising in this field of law, then the offer was self-evidently reasonable and the plaintiff’s non-acceptance of the offer was unreasonable. This factor strongly supports the making on the costs order sought by the executor.

7. [34]

   However, if I make the costs order sought by the executor, then it will have a detrimental effect on the plaintiff’s financial position, which I took into account in my principal judgment. Whilst such a costs order would not render the plaintiff impecunious, it would nonetheless cause a material change in an important factor which I took into account in dismissing his application for provision, this is, it would alter the basis on which the claim for provision was rejected. The plaintiff’s claim, although ultimately unsuccessful, was not novel or without merit. I consider that the costs order suggested by the plaintiff reach a fair and just result or achieve overall justice in the case.

8. [35]

   In respect of the possession proceedings, I agree with the plaintiff’s senior counsel that the family provision and possession proceedings were effectively heard as one proceeding. I did take the plaintiff’s period of rent-free accommodation into account in my consideration of his claim for family provision and I do not wish to materially alter the bases upon which I dismissed the plaintiff’s claim overall by making the costs orders sought by the executor.

ERRORS AND OMISSIONS

1. [36]

   The executor notified various errors and omissions to my principal judgment, to which the plaintiff did not initially agree but ultimately agreed save for one, in respect of which the plaintiff wished to preserve his position. In my principal judgment, I noted at [206]: (emphasis added)

2. [37]

   In fact, Michael’s liabilities are some $15,000, whilst his net assets are USD$266,478. Both figures appear on the same page on Michael’s affidavit in sequential rows of a table as follows:

3. [38]

   I clearly made an error. Notwithstanding the plaintiff’s wish to preserve all possible appeal rights, this error appears to me to fall squarely within rule 36.17 of the UCPR, which provides:

4. [39]

   In its commentary, Ritchie’s Uniform Civil Procedure Rules NSW observed at [36.17.5], “In its primary connotation, the slip rule applies where the fact of the error, mistake, omission or slip is a matter upon which no real difference of opinion can exist. … A criterion suggested for determining whether a proposed correction is justified is the hypothetical enquiry as to whether the supposed error, if it had been drawn to the attention of the Court or the parties at the relevant time, would have been corrected as a matter of course …”. It is harder to think of a clearer example of such an error. Accordingly, it is appropriate to make the amendment under the slip rule, which I have done at the conclusion of these reasons.

5. [40]

   Whilst I am on the subject, the last two sentences of [207] of my principal judgment also contain minor errors when compared with [10] and [12] of Sarah’s affidavit of 30 October 2020 (Court Book 1263-1264) as follows:

6. [41]

   I will also correct these errors.

ORDERS

1. [42]

   For these reasons, I made the following orders on 8 June 2021:

   1. (1)

      Dismiss the Summons filed on 13 September 2019.

   2. (2)

      Order that the Defendant’s costs be paid from the Estate on the indemnity basis.

   3. (3)

      No order be made in relation to the Plaintiff’s costs with the intent that the plaintiff bear his own costs of the proceedings.

   4. (4)

      The Plaintiff is entitled to possession of the realty at 34/16 Neild Avenue, Darlinghurst (“the realty”) comprised in folio identifier 106/SP83594.

   5. (5)

      Grant leave to the plaintiff to issue a writ of possession in respect of the realty.

   6. (6)

      Stay the execution of the writ for possession of the realty until 11 June 2021.

   7. (7)

      The defendant is entitled to occupy the realty free of any obligation to pay rent or an occupation fee up to and including 11 June 2021.

   8. (8)

      Order the defendant to vacate the realty on or before 11 June 2021.

   9. (9)

      To the extent that the defendant’s occupation of the realty extends beyond 11 June 2021, the defendant is to pay to the plaintiff an occupation fee of $1,400 per week until he vacates.

   10. (10)

       No order as to the defendant’s costs of the proceedings to the intent he bear his own costs.

   11. (11)

       The Plaintiff’s costs be paid from the estate on the indemnity basis.

2. [43]

   In addition, I make the following orders:

   1. (1)

      Pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), amend “$15,000” in Schneider v Kemeny [2021] NSWSC 524 at [206] to “US$266,478”.

   2. (2)

      Pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), amend Schneider v Kemeny [2021] NSWSC 524 at [207] as follows (changes underlined):