Rydzewski v Rydzewski (No 2) [2024] NSWSC 1074

Rydzewski v Rydzewski (No 2) [2024] NSWSC 1074

A beneficiary who brings proceedings on behalf of a deceased estate for its benefit, in circumstances where the administrator would not otherwise have done so, may recover out of the estate the difference between ordinary and indemnity costs, provided those costs were properly and reasonably incurred. The assessment of reasonableness is a matter for a costs assessor, and the onus is on the estate/administrator to demonstrate any unreasonableness in the costs claimed.

Parties
Cross Claimant: Stanislaus Rydzewski; Fifth Cross Defendant: Daniel McKinnon as the administrator of the Estate of the late Maria Rydzewski
Jurisdiction
Australia
Judgment Date
23 August 2024
Procedural Posture
Equity – Probate / Post Substantive Judgment – Costs Determination
Outcome
Application for payment of difference between ordinary and indemnity costs out of estate allowed
Legal Topics
Costs Payable Out of Estate, Indemnity and Ordinary Basis Costs, Quantification of Costs, Executor/administrator Indemnity, Beneficiary Derivative Actions
Costs Succession Probate Costs Payable Out of Estate Indemnity and Ordinary Basis Costs Quantification of Costs Executor/administrator Indemnity Beneficiary Derivative Actions

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Parties

Stanislaus Rydzewski

Cross Claimant

Daniel McKinnon as the administrator of the Estate of the late Maria Rydzewski

Fifth Cross Defendant

Procedural Posture

Equity – Probate / Post Substantive Judgment – Costs Determination

Legal Issues

  1. 1 Whether the difference between ordinary and indemnity costs incurred by a beneficiary should be paid out of the deceased estate
  2. 2 Whether costs incurred by the beneficiary were proper and reasonable

Ratio Decidendi

A beneficiary who brings proceedings on behalf of a deceased estate for its benefit, in circumstances where the administrator would not otherwise have done so, may recover out of the estate the difference between ordinary and indemnity costs, provided those costs were properly and reasonably incurred. The assessment of reasonableness is a matter for a costs assessor, and the onus is on the estate/administrator to demonstrate any unreasonableness in the costs claimed.

Court Disposition

Application for payment of difference between ordinary and indemnity costs out of estate allowed

Orders

  • Any difference between the Cross-claimant's ordinary and indemnity costs, as agreed or assessed, be paid out of the estate of the deceased.
  • The Fifth Cross-defendant's costs of the proceedings, including costs relating to the Cross-claimant's application for costs, be paid from the estate on the indemnity basis.