Hoobin v Hoobin (No. 2) [2004] NSWSC 953

Hoobin v Hoobin (No. 2) [2004] NSWSC 953

The plaintiff, having refused a reasonable settlement offer (Calderbank letter) and failed in the probate claim, must bear a substantial portion of her own costs personally, given that the majority of hearing costs arose from claims that should have been compromised. Nevertheless, the court considered the necessity of balancing this with the plaintiff’s ongoing financial needs and not requiring a full reassessment of provision under the Family Provision Act. The established principle remains that certain costs are to be recouped from the estate, subject to safeguards including agreement, assessment, or court process, but a portion must be borne personally by the plaintiff.

Jurisdiction
Australia
Judgment Date
01 October 2004
Procedural Posture
Civil / Post Trial Costs and Final Orders After Earlier Judgment
Outcome
Orders made in respect of costs and provision under Family Provision Act; plaintiff to bear $25,000 of her own costs personally; detailed directions regarding recoupment of costs from the estate; Family Provision Act applications resolved; extension of time for applications granted; property declared notional...
Legal Topics
['family Provision' 'costs' 'probate' 'calderbank Offer' 'intestacy' 'trustee Costs' 'recoupment of Legal Costs']
['succession Law' 'equity' 'civil Procedure'] ['family Provision' 'costs' 'probate' 'calderbank Offer' 'intestacy' 'trustee Costs' 'recoupment of Legal Costs']

Case Brief

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Procedural Posture

Civil / Post Trial Costs and Final Orders After Earlier Judgment

Legal Issues

  1. 1 ['Whether unsuccessful administratrix (plaintiff) should bear a portion of costs personally after failure to accept a Calderbank settlement offer' 'How costs should be distributed among parties after election under s 61D Wills, Probate and Administration Act 1898 (NSW)' 'Whether provision under Family Provision Act 1982 (NSW) was appropriate given parties’ financial positions and costs assumptions']

Ratio Decidendi

The plaintiff, having refused a reasonable settlement offer (Calderbank letter) and failed in the probate claim, must bear a substantial portion of her own costs personally, given that the majority of hearing costs arose from claims that should have been compromised. Nevertheless, the court considered the necessity of balancing this with the plaintiff’s ongoing financial needs and not requiring a full reassessment of provision under the Family Provision Act. The established principle remains that certain costs are to be recouped from the estate, subject to safeguards including agreement, assessment, or court process, but a portion must be borne personally by the plaintiff.

Court Disposition

Orders made in respect of costs and provision under Family Provision Act; plaintiff to bear $25,000 of her own costs personally; detailed directions regarding recoupment of costs from the estate; Family Provision Act applications resolved; extension of time for applications granted; property declared notional...

Orders

  • ['Orders in proceeding 114192/02: plaintiff’s and defendants’ costs to be paid from the estate (plaintiff’s on trustee basis, defendants’ on indemnity basis); plaintiff may not recoup costs except with defendants’ written agreement, assessment under Legal Profession Act, or verifying and filing accounts.' 'Orders in...