Herr v Fitzgibbon (No 2) [2008] NSWSC 354

Herr v Fitzgibbon (No 2) [2008] NSWSC 354

The court ordered that interest on unpaid legacies should run after six months from the making of the orders or seven days after settlement of sale of estate property, whichever comes later. The executor is entitled to indemnity costs and the successful applicants to party and party costs.

Parties
First Plaintiff: John George Herr; Second Plaintiff: Catherine Judith Gazzard; Third Plaintiff: Malcolm Ian Herr; Defendant: Colin Graham Fitzgibbon
Jurisdiction
Australia
Judgment Date
14 April 2008
Procedural Posture
Succession Family Provision and Maintenance / Post Judgment Costs and Orders
Outcome
Orders made amending periods for interest on unpaid legacies and determining costs for parties.
Legal Topics
Family Provision, Interest on Unpaid Legacies, Costs
Succession Family Provision Interest on Unpaid Legacies Costs

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Parties

John George Herr

First Plaintiff

Catherine Judith Gazzard

Second Plaintiff

Malcolm Ian Herr

Third Plaintiff

Colin Graham Fitzgibbon

Defendant

Procedural Posture

Succession Family Provision and Maintenance / Post Judgment Costs and Orders

Legal Issues

  1. 1 Appropriate period for interest to run on unpaid legacies
  2. 2 Proper award of costs to executor and successful applicants

Ratio Decidendi

The court ordered that interest on unpaid legacies should run after six months from the making of the orders or seven days after settlement of sale of estate property, whichever comes later. The executor is entitled to indemnity costs and the successful applicants to party and party costs.

Court Disposition

Orders made amending periods for interest on unpaid legacies and determining costs for parties.

Orders

  • Interest to run on unpaid legacies after six months from the orders or seven days after settlement of sale of estate property.
  • Executor to have costs on an indemnity basis.