Carey v Robson & Anor; Nicholls v Robson & Anor (No 2) [2009] NSWSC 1199

Carey v Robson & Anor; Nicholls v Robson & Anor (No 2) [2009] NSWSC 1199

Because Marion and Rosemary were unsuccessful, were already in comfortable financial circumstances, had received substantial provision from the estate, did not show that adverse costs orders would cause severe financial consequences, and identified no discretionary factor sufficient to depart from the usual New South Wales rule, the overall justice of the case required that each plaintiff pay Alan's costs of her proceeding on the party/party basis, apart from formal executors' costs payable out of the estate on the indemnity basis.

Jurisdiction
Australia
Judgment Date
10 November 2009
Procedural Posture
Succession Family Provision Costs / Consequential Costs Orders After Dismissal of Family Provision Summonses
Outcome
In each proceeding, apart from the costs of formal executors' affidavits and other joint executors' costs, the plaintiff was ordered to pay the First Defendant's costs on the party/party basis.
Legal Topics
['costs Following the Event' 'unsuccessful Family Provision Claims' 'costs Out of Estate' 'party/party Costs' 'indemnity Costs' 'practice Note SC Eq 7' 'overriding Purpose']
['succession' 'family Provision' 'civil Procedure' 'costs'] ['costs Following the Event' 'unsuccessful Family Provision Claims' 'costs Out of Estate' 'party/party Costs' 'indemnity Costs' 'practice Note SC Eq 7' 'overriding Purpose']

Case Brief

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Procedural Posture

Succession Family Provision Costs / Consequential Costs Orders After Dismissal of Family Provision Summonses

Legal Issues

  1. 1 ["Whether unsuccessful family provision claimants should have their costs paid out of the estate, have no adverse costs order made, or pay the successful defendant's costs." "Whether discretionary factors in Marion's or Rosemary's circumstances justified departure from the usual rule that costs follow the event." 'Whether excessive and disproportionate evidence and costs in family provision proceedings warranted special costs orders.' 'Whether the costs of Senior and Junior Counsel for Alan should be disallowed.']

Ratio Decidendi

Because Marion and Rosemary were unsuccessful, were already in comfortable financial circumstances, had received substantial provision from the estate, did not show that adverse costs orders would cause severe financial consequences, and identified no discretionary factor sufficient to depart from the usual New South Wales rule, the overall justice of the case required that each plaintiff pay Alan's costs of her proceeding on the party/party basis, apart from formal executors' costs payable out of the estate on the indemnity basis.

Court Disposition

In each proceeding, apart from the costs of formal executors' affidavits and other joint executors' costs, the plaintiff was ordered to pay the First Defendant's costs on the party/party basis.

Orders

  • ['The costs of the formal joint affidavits of the executors and any other costs of the executors acting jointly are to be paid out of the estate on the indemnity basis.' "Otherwise, the Plaintiff is to pay the First Defendant's costs of the proceedings on the party/party basis."]