Grant v Grant; Grant v Grant (No. 5) [2022] NSWSC 773

Grant v Grant; Grant v Grant (No. 5) [2022] NSWSC 773

Given the defendants’ serious misconduct, the complexity and protraction of proceedings, and the adequacy of evidence as to quantum, a specified gross sum order is appropriate under s 98(4)(c), being a full indemnity for counsel fees and disbursements and 95% indemnity for solicitors’ costs; the Court will not, due to bankruptcy, enter judgment against Ms Nerez Grant, but will make such an order against Ms Williams.

Parties
Plaintiff; Representative of the Estate of Alan Grant; Executor of Gwynneth Grant's Estate: Seth Grant; First Defendant; Plaintiff in Family Provision Proceedings: Nerez Grant; Second Defendant: Kashaya Grant (also referred to as Kashaya Williams)
Jurisdiction
Australia
Judgment Date
10 June 2022
Procedural Posture
Equity Proceedings (estate Recovery and Family Provision) / Post Appeal, Application for Gross Sum Costs Order
Outcome
Specified gross sum costs order made in favour of the estate (plaintiff) against Ms Williams; directions made for calculation and entry of judgment; no order entered against Ms Grant due to bankruptcy; further directions for evidence and calculations.
Legal Topics
Gross Sum Costs Orders, Indemnity Costs, Estate Litigation, Family Provision, Bankruptcy and Provable Debts, Procedure – Litigation Misconduct
Civil Procedure Equity Succession Law Gross Sum Costs Orders Indemnity Costs Estate Litigation Family Provision Bankruptcy and Provable Debts +1 more

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Parties

Seth Grant

Plaintiff; Representative of the Estate of Alan Grant; Executor of Gwynneth Grant's Estate

Nerez Grant

First Defendant; Plaintiff in Family Provision Proceedings

Kashaya Grant (also referred to as Kashaya Williams)

Second Defendant

Procedural Posture

Equity Proceedings (estate Recovery and Family Provision) / Post Appeal, Application for Gross Sum Costs Order

Legal Issues

  1. 1 Whether a specified gross sum costs order should be made under Civil Procedure Act 2005, s 98(4)(c) instead of assessed costs
  2. 2 Should a discount apply to indemnity costs when ordering a gross sum
  3. 3 Whether bankruptcy of a defendant precludes a costs order against her

Ratio Decidendi

Given the defendants’ serious misconduct, the complexity and protraction of proceedings, and the adequacy of evidence as to quantum, a specified gross sum order is appropriate under s 98(4)(c), being a full indemnity for counsel fees and disbursements and 95% indemnity for solicitors’ costs; the Court will not, due to bankruptcy, enter judgment against Ms Nerez Grant, but will make such an order against Ms Williams.

Court Disposition

Specified gross sum costs order made in favour of the estate (plaintiff) against Ms Williams; directions made for calculation and entry of judgment; no order entered against Ms Grant due to bankruptcy; further directions for evidence and calculations.

Orders

  • Judgment to be given in the estate recovery proceedings under Civil Procedure Act 2005, s 98(4)(c) in favour of the plaintiff and against Ms Williams for costs, as detailed, with a full indemnity for counsel fees/disbursements and 95% indemnity for solicitors’ costs.
  • Solicitors for the estate to calculate and provide the quantification for entry of judgment in accordance with the methodology set by the Court.