Galstian v Galstaun (bht M. Chater) [2010] NSWSC 1214

Galstian v Galstaun (bht M. Chater) [2010] NSWSC 1214

The plaintiff's impecuniosity was only one consideration. The proposed order would in effect require the deceased's estate, in which the plaintiff might have no interest if he failed, to act as a litigation funder or secured lender for the establishment of his claim. Unlike matrimonial or de facto relationship cases, there was no assured entitlement from which any unfairness of an interim costs order could be adjusted at final hearing. In adversarial contested probate litigation, and where the plaintiff was not unquestionably entitled to any share of the estate if his claim failed, there was no justification for exercising the discretion to make the interim costs order sought.

Jurisdiction
Australia
Judgment Date
21 October 2010
Procedural Posture
Contested Probate Suit / Notice of Motion Seeking Interim Costs Order Out of the Deceased's Estate
Outcome
Interim costs order refused; Notice of Motion dismissed.
Legal Topics
['informal Will Under S 8 Succession Act 2006 (nsw)' 'interim Costs Order' 'costs Out of Estate' 'contested Probate Proceedings' 'access to Justice and Impecuniosity']
['succession' 'probate' 'costs' 'civil Procedure'] ['informal Will Under S 8 Succession Act 2006 (nsw)' 'interim Costs Order' 'costs Out of Estate' 'contested Probate Proceedings' 'access to Justice and Impecuniosity']

Case Brief

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Procedural Posture

Contested Probate Suit / Notice of Motion Seeking Interim Costs Order Out of the Deceased's Estate

Legal Issues

  1. 1 ["Whether the Court should make an interim order that the plaintiff's legal costs and disbursements of and incidental to the proceedings be paid out of the estate of the late Arshak Galstaun on a solicitor/client or indemnity basis." 'Whether any interim costs order could or should be made on terms requiring repayment and security if the plaintiff failed in the probate proceedings.' 'Whether the circumstances of contested probate litigation justified analogy with matrimonial or de facto relationship cases in which interim costs orders may be made.']

Ratio Decidendi

The plaintiff's impecuniosity was only one consideration. The proposed order would in effect require the deceased's estate, in which the plaintiff might have no interest if he failed, to act as a litigation funder or secured lender for the establishment of his claim. Unlike matrimonial or de facto relationship cases, there was no assured entitlement from which any unfairness of an interim costs order could be adjusted at final hearing. In adversarial contested probate litigation, and where the plaintiff was not unquestionably entitled to any share of the estate if his claim failed, there was no justification for exercising the discretion to make the interim costs order sought.

Court Disposition

Interim costs order refused; Notice of Motion dismissed.

Orders

  • ["The plaintiff's Notice of Motion is dismissed."]