Shelley v Prager (No 2) [2020] NSWSC 1553

Shelley v Prager (No 2) [2020] NSWSC 1553

The overall justice of the case did not warrant departure from the usual rule that costs follow the event. Although the plaintiff's claim was not frivolous or vexatious, it was not strong from the outset, failed, and the plaintiff incurred costs that were objectively disproportionate to the modest value of the estate. The defendants were required to incur costs defending the estate, and there was no reason why the burden of those costs should be borne by the estate and beneficiaries rather than by the unsuccessful plaintiff.

Jurisdiction
Australia
Judgment Date
04 November 2020
Procedural Posture
Family Provision Costs Determination / On the Papers After Principal Judgment Dismissing the Plaintiff's Claim for Provision Out of the Estate
Outcome
The plaintiff was ordered to pay the defendants' costs on the ordinary basis; the balance of the defendants' costs on the indemnity basis were ordered to be paid out of the estate; no order was made as to the plaintiff's costs.
Legal Topics
['family Provision Costs' 'costs Following the Event' 'costs Out of Deceased Estate' 'ordinary Basis Costs' 'indemnity Basis Costs']
['equity' 'succession' 'civil Procedure'] ['family Provision Costs' 'costs Following the Event' 'costs Out of Deceased Estate' 'ordinary Basis Costs' 'indemnity Basis Costs']

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

Family Provision Costs Determination / On the Papers After Principal Judgment Dismissing the Plaintiff's Claim for Provision Out of the Estate

Legal Issues

  1. 1 ["Whether the unsuccessful plaintiff's costs should be paid out of the deceased estate." "Whether the unsuccessful plaintiff should pay the defendant executors' costs of the proceeding." 'Whether the overall justice of the case warranted departure from the usual rule that costs follow the event in a family provision proceeding.']

Ratio Decidendi

The overall justice of the case did not warrant departure from the usual rule that costs follow the event. Although the plaintiff's claim was not frivolous or vexatious, it was not strong from the outset, failed, and the plaintiff incurred costs that were objectively disproportionate to the modest value of the estate. The defendants were required to incur costs defending the estate, and there was no reason why the burden of those costs should be borne by the estate and beneficiaries rather than by the unsuccessful plaintiff.

Court Disposition

The plaintiff was ordered to pay the defendants' costs on the ordinary basis; the balance of the defendants' costs on the indemnity basis were ordered to be paid out of the estate; no order was made as to the plaintiff's costs.

Orders

  • ["No order as to the plaintiff's costs of the proceeding, with the intention that she will bear her own costs." "The plaintiff is to pay the defendants' costs of the proceeding on the ordinary basis." "The balance of the defendants' costs of the proceeding, that is, the difference between the costs payable by the...