Slack v Rogan & Anor; Palffy v Rogan & Ors (No. 2) [2013] NSWSC 827

Slack v Rogan & Anor; Palffy v Rogan & Ors (No. 2) [2013] NSWSC 827

There was no sufficient reason to depart from the prima facie operation of r 42.15(2). Mr Palffy rejected a substantial offer of compromise because he considered it inadequate; any uncertainty about Mr Slack's consent was immaterial because Mr Palffy was not minded to accept the offer and could have sought clarification, and the uncertainty as to the estate available or the value of a family provision claim was only one of the risks he faced. However, the Court would not order Mr Palffy to pay Mr Slack's own defence costs so as to burden him with two sets of indemnity costs.

Jurisdiction
Australia
Judgment Date
11 June 2013
Procedural Posture
Costs in Family Provision and Related Probate Proceedings / Costs Orders Following Reasons Delivered on 10 May 2013
Outcome
Costs orders made in proceedings 2011/220317.
Legal Topics
['offer of Compromise' 'uniform Civil Procedure Rules R 42.15' 'family Provision Costs' 'executor Costs' 'indemnity Costs']
['costs' 'civil Procedure' 'succession'] ['offer of Compromise' 'uniform Civil Procedure Rules R 42.15' 'family Provision Costs' 'executor Costs' 'indemnity Costs']

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Procedural Posture

Costs in Family Provision and Related Probate Proceedings / Costs Orders Following Reasons Delivered on 10 May 2013

Legal Issues

  1. 1 ['Whether the Court should order otherwise than provided for by r 42.15(2) of the Uniform Civil Procedure Rules after Mr Palffy failed to accept an offer of compromise more favourable than the result obtained.' "Whether uncertainty about Mr Slack's consent to an offer made by the previous executors justified departure from r 42.15(2)." 'Whether difficulty in estimating the value of a family provision claim and the estate available for that claim justified departure from r 42.15(2).' "Whether Mr Palffy should be ordered to pay the third defendant's own costs of defending Mr Palffy's proceedings after the offer of compromise."]

Ratio Decidendi

There was no sufficient reason to depart from the prima facie operation of r 42.15(2). Mr Palffy rejected a substantial offer of compromise because he considered it inadequate; any uncertainty about Mr Slack's consent was immaterial because Mr Palffy was not minded to accept the offer and could have sought clarification, and the uncertainty as to the estate available or the value of a family provision claim was only one of the risks he faced. However, the Court would not order Mr Palffy to pay Mr Slack's own defence costs so as to burden him with two sets of indemnity costs.

Court Disposition

Costs orders made in proceedings 2011/220317.

Orders

  • ["Order that the first and second defendants' costs of the proceedings, assessed on the indemnity basis, be paid by the third defendant out of the estate." 'Order that order 1 does not extend to the costs of preparing the affidavits of Mark and Elizabeth Rogan dated 8 March 2013, in respect of which no order is made...