Jvancich v Kennedy (No 2) [2004] NSWCA 397

Jvancich v Kennedy (No 2) [2004] NSWCA 397

The usual approach to costs in Family Provision Act applications at first instance also extends to appeals. As neither party acted unreasonably, and because the appeal was part of determining appropriate provision, both parties' costs of the appeal should be paid out of the notional estate. There is no basis for imposing an arbitrary ceiling on costs.

Parties
Appellant: Augustina Jvancich; Respondent: Kimm Kennedy
Jurisdiction
Australia
Judgment Date
03 November 2004
Procedural Posture
Family Provision Act Application Costs Determination / Appeal Post Judgment Costs Decision
Outcome
Appeal costs determination: costs of both parties on appeal to be paid out of the notional estate; order of the Master as to costs confirmed.
Legal Topics
Costs in Family Provision Act Proceedings, Notional Estate, Discretion in Awarding Costs, Appellate Costs Orders
Wills and Estates Family Provision Costs in Family Provision Act Proceedings Notional Estate Discretion in Awarding Costs Appellate Costs Orders

Case Brief

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Parties

Augustina Jvancich

Appellant

Kimm Kennedy

Respondent

Procedural Posture

Family Provision Act Application Costs Determination / Appeal Post Judgment Costs Decision

Legal Issues

  1. 1 Whether costs of proceedings before the Master should be limited by a fixed ceiling
  2. 2 Whether costs of appeal should be paid by the respondent or from the notional estate of the deceased

Ratio Decidendi

The usual approach to costs in Family Provision Act applications at first instance also extends to appeals. As neither party acted unreasonably, and because the appeal was part of determining appropriate provision, both parties' costs of the appeal should be paid out of the notional estate. There is no basis for imposing an arbitrary ceiling on costs.

Court Disposition

Appeal costs determination: costs of both parties on appeal to be paid out of the notional estate; order of the Master as to costs confirmed.

Orders

  • Confirm the order as to costs made by the Master.
  • Order that the costs of the appellant and the respondent of the appeal be paid out of the notional estate of the deceased.