Sariban v Pocock; Pocock v Peipman (No 2) [2018] NSWSC 982

Sariban v Pocock; Pocock v Peipman (No 2) [2018] NSWSC 982

Because Ruth Vivian Sariban's family provision claim was dismissed, the agreed costs arrangement between Ruth and Ingrid Orlanda Amalie Pocock was appropriate and Ruth should also pay Samuel Eskil Peipman's costs, if any, incurred as second Defendant on the ordinary basis. Because Samuel did not succeed in the possession proceedings, he should pay Ingrid's costs of those proceedings on the ordinary basis. However, requiring Samuel's entitlement under the Will to meet the difference between Ingrid's ordinary and indemnity costs would effectively impose indemnity costs on him in circumstances where Ingrid acted for both the deceased's estate and beneficiaries of Eskil's intestate estate;...

Jurisdiction
Australia
Judgment Date
26 June 2018
Procedural Posture
Family Provision Proceedings and Related Possession Proceedings; Costs / Post Judgment Determination of Costs After Dismissal of the Family Provision Claim and Making of Possession Orders
Outcome
Costs determined; directions given for orders reflecting the reasons.
Legal Topics
['costs' 'family Provision' 'possession Proceedings' 'ordinary Basis Costs' 'indemnity Basis Costs' 'estate Administration']
['civil Procedure' 'succession' 'property'] ['costs' 'family Provision' 'possession Proceedings' 'ordinary Basis Costs' 'indemnity Basis Costs' 'estate Administration']

Case Brief

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Procedural Posture

Family Provision Proceedings and Related Possession Proceedings; Costs / Post Judgment Determination of Costs After Dismissal of the Family Provision Claim and Making of Possession Orders

Legal Issues

  1. 1 ["How costs should be dealt with in Ruth Vivian Sariban's dismissed family provision proceedings, including the agreed costs position between Ruth and Ingrid and Samuel Eskil Peipman's costs as second Defendant." "Whether Samuel Eskil Peipman should pay Ingrid Orlanda Amalie Pocock's costs of the possession proceedings and on what basis." "Whether the difference between Ingrid Orlanda Amalie Pocock's costs calculated on the indemnity basis and on the ordinary basis in the possession proceedings should be paid out of Samuel Eskil Peipman's entitlement under the Will or from another source."]

Ratio Decidendi

Because Ruth Vivian Sariban's family provision claim was dismissed, the agreed costs arrangement between Ruth and Ingrid Orlanda Amalie Pocock was appropriate and Ruth should also pay Samuel Eskil Peipman's costs, if any, incurred as second Defendant on the ordinary basis. Because Samuel did not succeed in the possession proceedings, he should pay Ingrid's costs of those proceedings on the ordinary basis. However, requiring Samuel's entitlement under the Will to meet the difference between Ingrid's ordinary and indemnity costs would effectively impose indemnity costs on him in circumstances where Ingrid acted for both the deceased's estate and beneficiaries of Eskil's intestate estate;...

Court Disposition

Costs determined; directions given for orders reflecting the reasons.

Orders

  • ["The agreement between Ruth Vivian Sariban and Ingrid Orlanda Amalie Pocock as to costs in Ruth's proceedings was appropriate." "Ruth Vivian Sariban is to pay Ingrid Orlanda Amalie Pocock's costs of Ruth's proceedings calculated on the ordinary basis, to be paid or retained out of Ruth's share of the proceeds of...