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[2022] NSWSC 1755

White! v Sheppard

The Court: 1 Orders that the Summons filed on 14 February 2022 be dismissed. 2 Orders that the Defendant’s costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

Catchwords

PRACTICE & PROCEDURE – Dismissal of proceedings sought in email correspondence addressed to the Court by the Plaintiff, a litigant in person – Court did not act on email correspondence previously sent as it did not appear that the Plaintiff understood potential risk as to costs following dismissal or discontinuance unless otherwise order were made – At directions hearing offer made by Defendant executor of estate, which offer was rejected by Plaintiff who required various things to be done by the Defendant in the administration of the estate – Discussion and proposed orders and directions about additional information to be provided to the Plaintiff who considers proposed orders and directions to be not what he sought and to be of minimal assistance – Plaintiff then repeats request to have proceedings dismissed and rejects any opportunity to withdraw request.

Legislation cited

  • Uniform Civil Procedure Rules 2005 (NSW) § 42.19 and 42.20

Judgment

  1. [1]

    HIS HONOUR: In this matter, I have spent the last 40 minutes going through various matters with the Plaintiff (whose name is Marc White!), a litigant who has appeared in person throughout the proceedings. Some of that time was spent explaining the reasons why the Court did not dismiss his proceedings, by orders made in Chambers, based upon his requests to have the proceedings concluded and his case ended once and for all, made in emails that he had sent to my Chambers.

  2. [2]

    In broad terms, I have informed him of the costs implications that could arise in doing so and that I had not wanted to get to the stage of him discontinuing, or having the Court dismiss the proceedings without him understanding the costs implications of that course being taken: Uniform Civil Procedure Rules 2005 (NSW), r 42.19 and r 42.20.

  3. [3]

    (In the substantive proceedings, the Plaintiff sought relief relating to the administration of his mother’s estate. In the course of the proceedings, he has recently received an interim distribution of $450,000 out of the estate.)

  4. [4]

    So as to ascertain the attitude of the Defendant to the dismissal, or discontinuance, of the proceedings, I then asked counsel for the Defendant, who, after obtaining instructions, stated that if the Plaintiff chose to discontinue, or have the proceedings dismissed, today, with the intention that the Plaintiff is prevented from bringing fresh proceedings seeking the same or similar relief, the Defendant would not seek a costs order against him, but would seek an order that her costs be paid from the estate. That was said to be an open offer today.

  5. [5]

    I then explained to the Plaintiff that, effectively, if the proceedings were dismissed on that basis, he would be bearing one-third of the Defendant’s costs as he is a residuary beneficiary, with his two siblings.

  6. [6]

    After some further discussion, the Plaintiff indicated that he did not wish to accept the Defendant’s offer. Following his rejection of the Defendant’s offer, I informed the Plaintiff that there was no alternative but to proceed to the next stage of the case.

  7. [7]

    The Plaintiff then identified a number of issues that cause him concern and requested the Court to make orders, including that the Defendant apply for a tax file number and lodge the 2021/22 tax return and any other necessary tax returns by 5:00 p.m. on 16 December 2022, and advise him thereof by 5:00 p.m. on 19 December 2022 that these things had been done; to advise him of the amount of estate funds remaining and the estimated amount of remaining expenses, excluding CGT, by 5:00 p.m. on 16 December 2022; and that he be provided with individual bank generated PDFs of all estate bank transactions to date, by 5:00 p.m. on 16 December 2022.

  8. [8]

    In an endeavour to assist him to achieve a resolution of his concerns, after hearing a response from the Defendant’s counsel, I indicated that I would be prepared to make the following orders and directions, including one, made at his request, to adjourn the proceedings until 7 March 2023, in order to enable him to consider the various documents that I understood he was seeking:

  9. [9]

    I indicated that I would provide each of the parties with a copy of the orders and notations that I had proposed for his, and her, consideration. However, before I had the opportunity to do so, the Plaintiff indicated that the orders and directions that I had proposed would not meet his concerns; that they did not meet what he had requested; and that they would be of little assistance to him.

  10. [10]

    The following exchange then occurred (Tcpt, 13 December 2022, p 10(32)-11(12)):

  11. [11]

    Subsequently, a copy of the proposed orders and directions were provided to the Plaintiff.

  12. [12]

    Even whilst I was delivering these reasons, the Court interrupted itself and offered the Plaintiff an opportunity to recant his decision. I suggested that he read the proposed orders, and that he reconsider his position, whilst I dealt with another matter. More than once, he rejected the suggestion and maintained that he wished the proceedings to be dismissed in the following terms:

  13. [13]

    Despite the rejection of the offer made, the Defendant has, in light of the Plaintiff’s decision to have the proceedings dismissed, not sought an order for costs against him personally, but has sought an order that the Defendant’s costs, calculated on the indemnity basis, be paid out of the estate of the deceased. I am prepared to make that order.

  14. [14]

    In all the circumstances, the Court:

    1. (1)

      Orders that the Summons filed on 14 February 2022 be dismissed.

    2. (2)

      Orders that the Defendant’s costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.