Dion v Rieser (No 2) [2010] NSWSC 113 (24 February 2010)

Last Updated: 25 February 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Dion v Rieser (No 2) [2010] NSWSC 113


JURISDICTION:


FILE NUMBER(S):
2008/291431

HEARING DATE(S):
In Chambers

JUDGMENT DATE:
24 February 2010

PARTIES:
Margaret Anne DION (plaintiff)
Nancy Cimarron RIESER (first defendant)
Steven Robert RIESER (second defendant)
Estate of Richard Davis Rieser

JUDGMENT OF:
Bryson AJ

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
M B EVANS/ A KETAS (plaintiff)
A SCOTTING (defendants)


SOLICITORS:
Hungerford Lehmann & Andrews (plaintiff)
Teece, Hodgson & Ward (defendants)


CATCHWORDS:
COSTS – Probate litigation – Issue in application for Letters of Administration – Whether plaintiff was de facto spouse of intestate – Lengthy hearing including overseas witnesses led to finding that she was [2010] NSWSC 50 – Plaintiff sought costs order against defendants (relatives of intestate), defendants sought costs out of estate – Consideration of discretionary factors including contribution of intestate's conduct to difficulties of resolving the issue – Consideration of UCPR 42.1 – Costs order departed from ordinary course in UCPR.

LEGISLATION CITED:
Property (Relationships) Act 1984 s4
UCPR 42.1

CATEGORY:
Consequential orders

CASES CITED:
Dion v Rieser [2010] NSWSC 50

TEXTS CITED:


DECISION:
(1) The costs of the plaintiff of and incidental to proceedings on the statement of claim relating to the declaratory order may be paid or retained by her out of the assets of the intestate situated in New South Wales.
(2) I make no order as to the costs of the defendants with the intent that they pay their own costs.



JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST


BRYSON AJ

WEDNESDAY, 24 FEBRUARY, 2010

2008/291431 Margaret Anne DION v Nancy Cimarron RIESER & Ors – Estate of Richard Davis RIESER

JUDGMENT

1 When I gave judgment on 12 February 2010 [2010] NSWSC 50 I reserved costs.

2 The ordinary rule is that an award of costs in favour of the successful party against the unsuccessful party follows the event. UCPR 42.1 is:

Subject to this Part, if the court makes any order as to costs, the court 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.

3 Unless there is some sufficient ground displacing the ordinary outcome, I should order that the defendants pay the plaintiff’s costs of the proceedings relating to the declaratory order. I gave the parties an opportunity to make written submissions because the facts in the present case were unusual.

4 The facts brought under attention two kinds of exceptions which sometimes arise in probate litigation; where the proceedings are attributable to the conduct of the deceased, and where the circumstances reasonably required investigation of the document put forward as a will. This case raises generally similar considerations to the second of these.

5 The plaintiff’s written submissions proceed on the basis that the plaintiff had a strong and clear case and it was not reasonable of the defendants to oppose her case. The plaintiff succeeded: I gave judgment after several months of consideration and with analysis in detail, and upheld her claim. However it was not a foregone conclusion that she would succeed. The test for the existence of the de facto relationship, which I considered in my principal judgment at pars [7] to [16], is not simple and cannot be answered without detailed address to the facts of the relationship. As s 4 of the Property (Relationships) Act 1984 says, “in determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account ...” and while nine highly general classes of circumstances are mentioned, the relevant circumstances are not stated exhaustively.

6 The facts were elaborate, involving events over a period of almost twenty-five years during which the parties were separate many times. One element of the definition is that it is a relationship between persons “who live together as a couple” and there were significant times during the last years of Mr Rieser’s life when they were physically apart, and they were apart for about eight months immediately preceding his death. It is correct as the plaintiff’s counsel has shown, that the plaintiff knew much more and was in a much better position to prove facts and circumstances relating to Mr Rieser’s life and conduct than his relatives were; on the other hand Mr Rieser did not ever sever his family relationships, and his relatives put forward evidence which I had to consider carefully when coming to decision on all the circumstances of the relationship.

7 It was contended on behalf of the plaintiff to the effect that the defendants had acted unreasonably in requiring the attendance of witnesses from overseas. I do not accept this. Having regard to the nature of the issue it was well within the range of reasonable choices to decide that the witnesses should attend and be cross-examined. The issue before the Court was not a simple one which the defendants could readily inform themselves about and decide to admit or deny.

8 I do not accept submissions by the plaintiff’s counsel the tenor of which was that the plaintiff’s case was overwhelmingly clear and it was unreasonable of the defendants not to admit it. In my opinion it was appropriate for the defendants, notwithstanding they were unable to present a particularly strong factual case themselves, to take part in the hearing, and to test and analyse the evidence offered by the plaintiff. Their case was well conducted, in a manner which assisted the attainment of justice, on elaborate facts which were not easy to interpret.

9 This is not a case where the plaintiff was so clearly right that it was unreasonable of Mr Rieser’s relatives not to concede her success, but to ask the Court to consider all the circumstances and come to a conclusion; not a simple task. The main source of doubt and difficulty was the strange course of life followed by Mr Rieser, whose behaviour in a number of significant ways was not easy to understand or to interpret. In significant aspects of life he did not take reasonably clear positions; it seems that he deliberately avoided clear positions. He contemplated marrying the plaintiff but there was no marriage; he made a will which conferred benefits on the plaintiff but he revoked it without making another effective will; he made oral declarations to many persons about the closeness of his relationship with the plaintiff but his statements were not completely uniform; he presented a somewhat different picture to his relatives and he left nothing in writing which established the position clearly.

10 In my judgment this is not an appropriate case for applying the ordinary rule and ordering the defendants to pay the plaintiff’s costs. The plaintiff’s costs of establishing her relationship and her entitlement should be seen as costs which it was necessary to incur in order to establish entitlement to Mr Rieser’s assets in New South Wales, and should be paid out of those assets. The assets in New South Wales include moveable property which is available to satisfy the costs order, no matter who ultimately proves to be entitled under the law of domicile, which has not yet been established. Mr Rieser also owned real estate in New South Wales, a claim to the property at Byron Head, although the evidence which I reviewed in my judgment shows that the strength of that is little more than nominal. His relatives should be left to pay their own costs.

11 In my judgment the appropriate costs orders are these:

(1) The costs of the plaintiff of and incidental to proceedings on the statement of claim relating to the declaratory order may be paid or retained by her out of the assets of the intestate situated in New South Wales.

(2) I make no order as to the costs of the defendants with the intent that they pay their own costs.

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LAST UPDATED:
25 February 2010