Malachowski Jnr v Ciura; Malachowski v Ciura [2017] NSWSC 381

Malachowski Jnr v Ciura; Malachowski v Ciura [2017] NSWSC 381

The motion was dismissed because declarations that the proceedings had settled and as to the terms of settlement were unnecessary: the parties agreed there had been a compromise, and the Court could instead give effect to the settlement by making appropriate consent orders. The settlement required payment of a $210,000 legacy inclusive of costs from the estate under Chapter 3 Succession Act 2006 NSW, without the additional conditions proposed concerning sale of property. The plaintiff was not entitled to costs of the motion because the motion was dismissed, correspondence had not adequately clarified the plaintiff's concerns or proposed terms, the plaintiff had rejected an offer that...

Jurisdiction
Australia
Judgment Date
31 March 2017
Procedural Posture
Equity Family Provision List; Procedural Ruling Concerning Terms of Orders to Give Effect to Settlement / Notice of Motion Dated 20 March 2017 Seeking Declarations as to Compromise and Terms of Settlement, and Costs
Outcome
Motion dismissed with no order as to costs.
Legal Topics
['terms of Settlement' 'consent Orders' 'declarations' 'costs of Motion' 'legacy From Estate']
['succession' 'family Provision' 'probate' 'civil Procedure' 'settlement'] ['terms of Settlement' 'consent Orders' 'declarations' 'costs of Motion' 'legacy From Estate']

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Procedural Posture

Equity Family Provision List; Procedural Ruling Concerning Terms of Orders to Give Effect to Settlement / Notice of Motion Dated 20 March 2017 Seeking Declarations as to Compromise and Terms of Settlement, and Costs

Legal Issues

  1. 1 ['Whether the proceedings were compromised by agreement reached on 10 February 2017.' 'What the terms of the settlement were, including whether payment of the $210,000 legacy was conditional on sale of estate property or payable at a particular time.' 'What orders should be made to give effect to the settlement.' 'Whether the plaintiff should receive costs of the notice of motion and work undertaken to finalise the proceedings after 10 February 2017.']

Ratio Decidendi

The motion was dismissed because declarations that the proceedings had settled and as to the terms of settlement were unnecessary: the parties agreed there had been a compromise, and the Court could instead give effect to the settlement by making appropriate consent orders. The settlement required payment of a $210,000 legacy inclusive of costs from the estate under Chapter 3 Succession Act 2006 NSW, without the additional conditions proposed concerning sale of property. The plaintiff was not entitled to costs of the motion because the motion was dismissed, correspondence had not adequately clarified the plaintiff's concerns or proposed terms, the plaintiff had rejected an offer that...

Court Disposition

Motion dismissed with no order as to costs.

Orders

  • ['Notice of motion in the family provision proceedings dismissed with no order as to costs, with the intention that each party bear their own costs.' 'In the probate proceedings, orders were made in accordance with the document entitled Consent Order initialled and dated by the Court.' 'In the family provision...