Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell (No 2) [2019] NSWSC 798

Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell (No 2) [2019] NSWSC 798

Given the Defendants' rejection of a genuine Offer of Compromise, their knowledge of key facts, absence of evidence for undue influence, and the lack of merit in their claims, there is no basis to depart from the rule that they should pay the successful party's (Michael's) costs in probate and equity proceedings, largely on an indemnity basis after the relevant offer; broader or exceptional orders are unwarranted. In the family provision proceedings, costs are apportioned in accordance with offers served and actual outcomes, with indemnity costs to Michael from the date of such offers in Dominic's case.

Jurisdiction
Australia
Judgment Date
03 July 2019
Procedural Posture
Probate/equity/family Provision Proceedings (multiple) / Post Judgment (costs Determination)
Outcome
Orders as to costs made—costs apportioned as between parties and out of estate as detailed in final orders.
Legal Topics
['probate Costs' 'costs Orders' 'offer of Compromise' 'undue Influence' 'family Provision Claims' 'testamentary Capacity']
['succession Law' 'equity' 'civil Procedure' 'family Provision'] ['probate Costs' 'costs Orders' 'offer of Compromise' 'undue Influence' 'family Provision Claims' 'testamentary Capacity']

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Procedural Posture

Probate/equity/family Provision Proceedings (multiple) / Post Judgment (costs Determination)

Legal Issues

  1. 1 ['How should costs of probate, equity, and family provision proceedings be apportioned?' 'Whether to depart from the general rule that costs follow the event in probate and family provision litigation?' 'Relevance and effect of an Offer of Compromise on determination of indemnity costs?' 'Whether conduct of parties warranted orders on indemnity or ordinary basis?' 'Whether exceptions to usual costs orders apply in these proceedings?']

Ratio Decidendi

Given the Defendants' rejection of a genuine Offer of Compromise, their knowledge of key facts, absence of evidence for undue influence, and the lack of merit in their claims, there is no basis to depart from the rule that they should pay the successful party's (Michael's) costs in probate and equity proceedings, largely on an indemnity basis after the relevant offer; broader or exceptional orders are unwarranted. In the family provision proceedings, costs are apportioned in accordance with offers served and actual outcomes, with indemnity costs to Michael from the date of such offers in Dominic's case.

Court Disposition

Orders as to costs made—costs apportioned as between parties and out of estate as detailed in final orders.

Orders

  • ["Proceedings 2016/188756: Defendants Julian Karl Blendell and Dominic James Blendell each pay one quarter of Michael James Blendell's costs (probate/equity), in specified proportions and from specified periods; Nicholas Charles Blendell pays one quarter in relevant periods; Michael's own costs otherwise on...