Mitar v Mitar (No 2) [2017] NSWSC 1308

Mitar v Mitar (No 2) [2017] NSWSC 1308

Maria was not entitled to a special costs order against Ante because Ante achieved a result better than the $950,000 offers: the judgment gave him 30% of the net estate, calculated on assumed values at $964,286 and potentially more depending on the sale price of 1 Harry Avenue. The formal offer was also conditional on Linda and Dina accepting a related offer, and that condition was not satisfied. In those circumstances it was not unreasonable for Ante not to accept either the conditional offer or the later open offer, and it was not appropriate to require him to pay Maria's costs on an indemnity basis.

Jurisdiction
Australia
Judgment Date
27 September 2017
Procedural Posture
Costs Application in Family Provision Proceedings / After Principal Judgment
Outcome
Maria's application for a special costs order against Ante was refused; costs were ordered to be paid out of the deceased's estate.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'offer of Compromise' 'family Provision Order']
['costs' 'succession'] ['indemnity Costs' 'calderbank Offers' 'offer of Compromise' 'family Provision Order']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Application in Family Provision Proceedings / After Principal Judgment

Legal Issues

  1. 1 ['Whether Maria should obtain a special costs order requiring Ante to pay her costs on an indemnity basis after expiry of the formal offer of compromise.' 'Whether Maria should obtain a special costs order requiring Ante to pay her costs on an indemnity basis after the open offer made on the first day of hearing.' 'Whether Ante obtained a result more favourable than the $950,000 offers.' 'Whether the conditional nature of the formal offer affected the reasonableness of Ante not accepting it.']

Ratio Decidendi

Maria was not entitled to a special costs order against Ante because Ante achieved a result better than the $950,000 offers: the judgment gave him 30% of the net estate, calculated on assumed values at $964,286 and potentially more depending on the sale price of 1 Harry Avenue. The formal offer was also conditional on Linda and Dina accepting a related offer, and that condition was not satisfied. In those circumstances it was not unreasonable for Ante not to accept either the conditional offer or the later open offer, and it was not appropriate to require him to pay Maria's costs on an indemnity basis.

Court Disposition

Maria's application for a special costs order against Ante was refused; costs were ordered to be paid out of the deceased's estate.

Orders

  • ["Ante's costs of the proceedings be paid out of the estate of the deceased on the ordinary basis." "Maria's costs be paid out of the estate of the deceased on an indemnity basis."]