Salmon v Osmond (No 3)

THE COURT: This Court delivered its principal judgment in this matter on 10 March 2015: Salmon v Osmond [2015] NSWCA 42. In that judgment the Court made orders for provision for the first respondent, Kerryn Therese Osmond, out of the estate of the late Maurice Augustine Salmon. The Court also made consequential orders and orders for costs, including in relation to the second respondent, Donna Maree Peters. On 18 May 2015, the Court delivered a further judgment: Salmon v Osmond (No 2) [2015] NSWCA 131, correcting a clerical error in its earlier orders and varying order 6 to correctly accord with its reasons. For ease of reference, this judgment will continue to refer to the appellants, the executors of the deceased’s will, who were the defendants in the court below, as the appellants, and to Kerryn and Donna by their first names, as was the case in the principal judgment.

By notice of motion filed 4 June 2015, the appellants sought an order that order 6, as varied, be omitted from the Court’s orders on the basis that it did not properly give effect to the Court’s intention in the principal judgment. Kerryn and Donna oppose the motion.

In order to determine whether the appellants are entitled to the relief they seek, it is necessary to briefly recount the orders made in this matter at trial and in this Court.

In the primary judgment in the court below: Peters v Salmon [2013] NSWSC 953, Ball J ordered that Donna’s claim be dismissed. His Honour ordered that additional provision be made out of the estate of the deceased for Kerryn in the sum of $200,000. His Honour stood the matter over to provide an opportunity for the parties to come to an agreement as to costs.

As agreement was not forthcoming, his Honour determined the costs orders in his judgment delivered on 17 September 2013: Peters v Salmon (No 2) [2013] NSWSC 1071. This included a determination as to whether the appellants were entitled to an indemnity costs order on the basis of two offers of compromise they had made to Donna pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 20.26. Ball J rejected the application for indemnity costs and made the following costs orders:

The intent of these orders was that Donna, having failed in her claim, was to pay so much of the costs of the appellants as they had incurred in defending her claim at first instance. The primary judge assessed those costs as being 20 per cent of the total costs incurred by the defendants. That assessment was the basis of order 6 made by his Honour.

The appellants appealed against the additional provision made for Kerryn and against the trial judge’s rejection of their claim for indemnity costs against Donna. The appellants also sought, should the provision ordered for Kerryn be reduced but not overturned, that order 6 made by the primary judge:

On the appeal, Kerryn had the further provision ordered in her favour substantially reduced, from $200,000 to $50,000. The Court also upheld the appellants’ claim for indemnity costs against Donna.

This Court, in its principal judgment, made the following orders as to costs:

The reference to “respondents’ costs” in order 5 was a clerical mistake and was corrected to read “appellants’ costs” by the Court in Salmon v Osmond (No 2). The Court also amended order 5 to clarify that the appropriate costs order against Donna was that for which UCPR, r 42.15A provided, namely, that Donna was to pay costs on the ordinary basis up until the date of the appellants’ offer of compromise on 8 January 2015 and on an indemnity basis thereafter.

In the course of dealing with the application that lead to Salmon v Osmond (No 2), the Court realised that an additional error had been made in the expression of its orders in the principal judgment in that, as expressed in order 5, Donna had been made liable for the whole of the costs of the defendants at first instance. The Court did not intend that order to be made.

Although Donna had unsuccessfully prosecuted her claim, that claim had been brought in conjunction with Kerryn’s claim.

In making order 6 in the terms expressed in the principal judgment, the Court accidentally omitted that part of the order that was intended to reflect the proportion of the costs that Donna should bear. The primary judge, who was in the best position to assess that portion, did so by ordering that Donna bear 20 per cent of the costs of the defendants at first instance. The Court considered it appropriate to leave that assessment undisturbed.

For that reason, the Court amended its orders to reflect its intention that Donna should only bear that portion of the appellants’ costs that related to her claim. Although this was not the correction of a clerical mistake, it was the correction of an accidental omission within the ambit of UCPR, r 36.17. Such an order may be made either on application of a party or on the Court’s own motion. Contrary to the appellants’ submissions, the order made did not decide an otherwise undecided area of controversy.

In Salmon v Osmond (No 2), the Court, therefore, also made the following order:

That order reflected the finding by the Court in the principal judgment that, as Kerryn had been partly successful, the “overall justice of the case” required that the costs of the trial as they related to her should be balanced between her and the appellants: see at [170]-[176]. That balance was expressed in the determination at [175] that Kerryn should bear her own costs at trial. Implicit in that balance was that the appellants, also having been unsuccessful to a degree, should also not have their costs at trial as against Kerryn. It would be entirely inconsistent and incongruous with that finding for the appellants’ full costs to be borne by Donna.

The appellants submitted that it was for Donna to apply to this Court for an order in the nature of order 6 and she did not do so. That submission must be rejected. Order 6 was originally made by the trial judge. As noted above at [7], the appellants formally challenged it on the appeal, albeit in very wide terms. However, no submission was directed to that challenge. In that circumstance, it was open and indeed proper for the Court not to disturb the effect of order 6 in the court below, except as required to give effect to the appellants’ success with respect to their claim for indemnity costs.

The appellants further appeared to submit that the Court should, in making costs orders, have regard to offers of compromise made to Kerryn not previously brought to the Court’s attention. The basis of this submission was not clear. In any case, to the extent that the appellants seek a different order on the basis of such an offer pursuant to UCPR, r 36.16(3A), they are out of time. Further, even had such an application been made in time, and regardless of the amendments that were made to the orders of the principal judgment, it is not likely that such application would have impacted upon the appropriate order, insofar as Donna’s liability for costs is concerned.

For complete clarity, it is appropriate to set out in full the combined effect of the orders made by this Court in this matter (except as to the costs of the notices of motion). They are:

1. Appeal allowed;

2. Set aside the orders made in the court below;

3. Order that in addition to the provision made for the first respondent Kerryn Therese Osmond under the will of the late Maurice Augustine Salmon (the deceased), Kerryn Therese Osmond receive a legacy out of the estate of the deceased in the sum of $50,000;

4. Order that no interest is payable on the legacy in favour of Kerryn Therese Osmond if paid within 90 days of the date of this order. Otherwise interest is payable on the said legacy or so much as remains unpaid from time to time at the rate prescribed by the Probate and Administration Act 1898 (NSW) on unpaid legacies calculated on the last day of each month thereafter until the legacy has been fully paid;

5. In lieu of order 5 in the judgment of the court below of 17 September 2013, order that the second respondent, Donna Maree Peters, pay the appellants’ costs of proceedings in the court below, on the ordinary basis up to and including 8 January 2013 and on an indemnity basis as and from 9 January 2013;

6. The costs referred to in 5 shall be determined as 20 per cent of the costs incurred by the estate in defending the proceedings brought by the first plaintiff and the third plaintiff and shall be credited to the amounts to be distributed from the estate to the first defendant and second defendant in proportion to the amounts paid from their share of the estate to satisfy order 7;

7. Order that the respondents pay the appellants’ costs of the appeal and that those costs are to be borne by the first respondent Kerryn Therese Osmond as to 90 per cent and the second respondent Donna Maree Peters as to 10 per cent. The respondents are to have a certificate under the Suitors’ Fund Act 1951 (NSW) if so entitled.

However, as these outcomes are unchanged by the present judgment, the only order that it is appropriate to make now is as follows:

The appellants’ notice of motion filed 4 June 2015 is dismissed with costs.