Magur v Brydon (No 2) [2015] NSWSC 548

Magur v Brydon (No 2) [2015] NSWSC 548

The plaintiff is entitled to her costs out of the estate on the ordinary basis up to 18 June 2014 and on the indemnity basis thereafter, as her earlier offer of compromise was more favorable than the judgment. There is no basis to make the executor personally liable for costs, nor to order payment of costs from prior probate/revocation proceedings, nor to cap the plaintiff's costs.

Jurisdiction
Australia
Judgment Date
12 May 2015
Procedural Posture
Family Provision/costs Determination / Post Judgment Costs Determination
Outcome
Plaintiff's costs to be paid out of the estate on the ordinary basis up to 18 June 2014 and on the indemnity basis after that date; other applications for costs and capping orders dismissed.
Legal Topics
['family Provision' 'costs Orders' 'indemnity Costs' "executor's Duties"]
['succession Law' 'civil Procedure'] ['family Provision' 'costs Orders' 'indemnity Costs' "executor's Duties"]

Case Brief

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Procedural Posture

Family Provision/costs Determination / Post Judgment Costs Determination

Legal Issues

  1. 1 ['Whether the plaintiff is entitled to indemnity costs from the estate after offer of compromise was not accepted' 'Whether the defendant executor should be personally liable for any costs' "Whether the plaintiff's costs of prior probate/revocation proceedings should be paid from the estate" "Whether the plaintiff's costs should be capped"]

Ratio Decidendi

The plaintiff is entitled to her costs out of the estate on the ordinary basis up to 18 June 2014 and on the indemnity basis thereafter, as her earlier offer of compromise was more favorable than the judgment. There is no basis to make the executor personally liable for costs, nor to order payment of costs from prior probate/revocation proceedings, nor to cap the plaintiff's costs.

Court Disposition

Plaintiff's costs to be paid out of the estate on the ordinary basis up to 18 June 2014 and on the indemnity basis after that date; other applications for costs and capping orders dismissed.

Orders

  • ["Order that the plaintiff's costs of the proceedings be paid out of the estate of the deceased on the ordinary basis up to 18 June 2014 and on the indemnity basis after that date."]