Lo Surdo v Public Trustee [2005] NSWSC 1290

Lo Surdo v Public Trustee [2005] NSWSC 1290

The plaintiff was ordered to pay the second defendant's costs because his claim had failed and that was accepted as the usual order in unsuccessful Family Provision Act proceedings. A gross sum order was appropriate because the plaintiff was unlikely to participate in later costs argument or assessment, communication with him was difficult, and further expenditure should be avoided; the proper amount was fixed at $150,000 as a satisfactory figure between the second defendant's claimed $184,560 and the plaintiff's asserted costs of about $120,000. The first defendant's costs were not ordered against the plaintiff because an earlier consent order provided that its costs be paid out of the...

Jurisdiction
Australia
Judgment Date
06 December 2005
Procedural Posture
Costs Following Dismissed Family Provision Act Proceedings / Costs Application After Judgment Dismissing Summons
Outcome
Second defendant awarded gross sum costs against the plaintiff; first defendant's costs since 9 May 2005 to be paid out of the estate on an indemnity basis; exhibits to be returned.
Legal Topics
['gross Sum Costs Order' 'assessment in Lieu of Taxation' 'indemnity Costs From Estate' 'costs of Unsuccessful Family Provision Act Proceedings']
['civil Procedure' 'costs' 'succession'] ['gross Sum Costs Order' 'assessment in Lieu of Taxation' 'indemnity Costs From Estate' 'costs of Unsuccessful Family Provision Act Proceedings']

Case Brief

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Procedural Posture

Costs Following Dismissed Family Provision Act Proceedings / Costs Application After Judgment Dismissing Summons

Legal Issues

  1. 1 ["Whether the plaintiff should pay the second defendant's costs of the proceedings." "Whether the Court should order a gross sum for the second defendant's costs under s 94(8)(c) of the Civil Procedure Act 2005." "Whether the first defendant's costs should be ordered against the plaintiff or paid out of the estate on an indemnity basis."]

Ratio Decidendi

The plaintiff was ordered to pay the second defendant's costs because his claim had failed and that was accepted as the usual order in unsuccessful Family Provision Act proceedings. A gross sum order was appropriate because the plaintiff was unlikely to participate in later costs argument or assessment, communication with him was difficult, and further expenditure should be avoided; the proper amount was fixed at $150,000 as a satisfactory figure between the second defendant's claimed $184,560 and the plaintiff's asserted costs of about $120,000. The first defendant's costs were not ordered against the plaintiff because an earlier consent order provided that its costs be paid out of the...

Court Disposition

Second defendant awarded gross sum costs against the plaintiff; first defendant's costs since 9 May 2005 to be paid out of the estate on an indemnity basis; exhibits to be returned.

Orders

  • ["The plaintiff pay the second defendant's costs of the proceedings in the sum of $150,000." 'The costs of the first defendant incurred after 9 May 2005 be paid out of the estate of the deceased on an indemnity basis.' 'The exhibits be returned.']