Dalton v Ellis; Estate of Bristow (No 2) [2006] NSWSC 61

Dalton v Ellis; Estate of Bristow (No 2) [2006] NSWSC 61

Although the defendant was the successful party because she retained the whole estate and had been forced to litigate by the plaintiffs' deed claim, her recovery of costs should be discounted because significant time was spent on unsuccessful and weak defences, including the challenge to the second plaintiff's paternity and the sham deed allegation. The plaintiffs were therefore ordered to pay 75% of the defendant's costs.

Jurisdiction
Australia
Judgment Date
16 February 2006
Procedural Posture
Equity Division Probate List Proceedings Concerning an Estate, Deed Claim, Family Provision Act Claim and Costs / Post Judgment Costs Determination
Outcome
Statement of claim dismissed; time extended for the cross-claimant to seek Family Provision Act relief; cross-claimant granted relief; plaintiffs ordered to pay 75% of the defendant's costs.
Legal Topics
['costs Following Event' 'issue Based Costs' 'family Provision Act 1982' 'intestacy' 'claim on Deed Against Estate']
['costs' 'probate and Succession' 'family Provision'] ['costs Following Event' 'issue Based Costs' 'family Provision Act 1982' 'intestacy' 'claim on Deed Against Estate']

Case Brief

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Procedural Posture

Equity Division Probate List Proceedings Concerning an Estate, Deed Claim, Family Provision Act Claim and Costs / Post Judgment Costs Determination

Legal Issues

  1. 1 ['Whether the defendant, having ultimately retained the whole estate, should receive her costs of the proceedings.' "Whether the plaintiffs' success on some issues and the defendant's unsuccessful defences justified an order that costs be borne by the estate, no order as to costs, or a discount from the defendant's costs." 'Whether the proceedings should simply be dismissed or orders should also be made extending time and granting relief to the cross-claimant under the Family Provision Act 1982.']

Ratio Decidendi

Although the defendant was the successful party because she retained the whole estate and had been forced to litigate by the plaintiffs' deed claim, her recovery of costs should be discounted because significant time was spent on unsuccessful and weak defences, including the challenge to the second plaintiff's paternity and the sham deed allegation. The plaintiffs were therefore ordered to pay 75% of the defendant's costs.

Court Disposition

Statement of claim dismissed; time extended for the cross-claimant to seek Family Provision Act relief; cross-claimant granted relief; plaintiffs ordered to pay 75% of the defendant's costs.

Orders

  • ['Statement of claim dismissed.' 'Extension of time for the cross-claimant to seek relief under the Family Provision Act.' 'Order in favour of the cross-claimant under the Family Provision Act.' "Order that the plaintiffs pay 75% of the defendant's costs." 'Exhibits to be returned or retained for 28 days.']