The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak No 2 [2015] NSWSC 1317

The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak No 2 [2015] NSWSC 1317

NSW Trustee & Guardian is entitled to costs of the Probate proceedings out of the estate calculated on the ordinary basis, not indemnity basis, as the circumstances of the case, including offers of compromise and the conduct of the parties, did not justify indemnity costs. Defendant’s/Cross-Claimant’s (Robert Budniak) costs are to be paid on the indemnity basis and subject to formal assessment unless all beneficiaries agree. In the family provision proceedings, NSW Trustee & Guardian receives its costs on the indemnity basis, and the Plaintiffs’ indemnity costs are included in the successful Defendant/Cross-Claimant's assessed costs out of the estate.

Jurisdiction
Australia
Judgment Date
10 September 2015
Procedural Posture
Equity Probate and Family Provision / Costs Determination Following Principal Judgment
Outcome
Probate granted to Defendant on 1994 Will; Family provision proceedings dismissed; orders regarding costs as detailed at [85]-[86]
Legal Topics
['probate Proceedings' 'family Provision Orders' 'assessment of Legal Costs' 'indemnity Costs' 'ordinary Basis Costs' 'estate Litigation']
['probate' 'family Provision' 'costs'] ['probate Proceedings' 'family Provision Orders' 'assessment of Legal Costs' 'indemnity Costs' 'ordinary Basis Costs' 'estate Litigation']

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Procedural Posture

Equity Probate and Family Provision / Costs Determination Following Principal Judgment

Legal Issues

  1. 1 ['Whether NSW Trustee & Guardian should receive indemnity costs or ordinary costs in Probate proceedings' 'Entitlement to costs in family provision proceedings and basis for their calculation' 'Whether the Defendant’s/Cross-Claimant’s costs should be assessed']

Ratio Decidendi

NSW Trustee & Guardian is entitled to costs of the Probate proceedings out of the estate calculated on the ordinary basis, not indemnity basis, as the circumstances of the case, including offers of compromise and the conduct of the parties, did not justify indemnity costs. Defendant’s/Cross-Claimant’s (Robert Budniak) costs are to be paid on the indemnity basis and subject to formal assessment unless all beneficiaries agree. In the family provision proceedings, NSW Trustee & Guardian receives its costs on the indemnity basis, and the Plaintiffs’ indemnity costs are included in the successful Defendant/Cross-Claimant's assessed costs out of the estate.

Court Disposition

Probate granted to Defendant on 1994 Will; Family provision proceedings dismissed; orders regarding costs as detailed at [85]-[86]

Orders

  • ['Declaration that the 1994 Will is an informal testamentary document per section 8 of the Succession Act 2006 (NSW)' 'Probate of 1994 Will in solemn form be granted to Robert Budniak' 'NSW Trustee & Guardian to deliver estate assets/documents to executor within 21 days of grant' 'NSW Trustee & Guardian’s costs of...