PERT v NORRIS-SMITH & ANOR [2008] NSWSC 57

PERT v NORRIS-SMITH & ANOR [2008] NSWSC 57

The plaintiff was wholly unsuccessful and there was no positive discretionary ground under s 33(1) to require her costs to be paid from the estate. The testator's will was clear, careful and just, his reasons were not shown to be inaccurate or improperly influenced, and the litigation was not caused by any conduct, doubt or uncertainty attributable to him. Although the plaintiff's disability made a tutor appropriate and the tutor did not act unreasonably, those circumstances did not make it just to impose the burden of the unsuccessful claim on the executrices or residuary beneficiaries, who had already borne their own costs.

Jurisdiction
Australia
Judgment Date
18 February 2008
Procedural Posture
Family Provision Application; Costs Application / Post Judgment Application for Plaintiff's Costs Out of the Estate After Dismissal of the Plaintiff's Summons
Outcome
The plaintiff's application for an order for her costs out of the estate was dismissed.
Legal Topics
['family Provision' 'costs Out of Estate' 'indemnity Costs' 'tutor for Plaintiff' 'discretion Under Family Provision Act 1982 S 33']
['succession' 'costs'] ['family Provision' 'costs Out of Estate' 'indemnity Costs' 'tutor for Plaintiff' 'discretion Under Family Provision Act 1982 S 33']

Case Brief

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Procedural Posture

Family Provision Application; Costs Application / Post Judgment Application for Plaintiff's Costs Out of the Estate After Dismissal of the Plaintiff's Summons

Legal Issues

  1. 1 ["Whether the unsuccessful plaintiff's costs of Family Provision Act proceedings should be paid out of the estate under s 33(1)." "Whether the plaintiff's disability, representation by a tutor, and the reasonableness of bringing proceedings provided a sufficient discretionary basis for a costs order out of the estate." 'Whether costs should be paid on an indemnity basis.']

Ratio Decidendi

The plaintiff was wholly unsuccessful and there was no positive discretionary ground under s 33(1) to require her costs to be paid from the estate. The testator's will was clear, careful and just, his reasons were not shown to be inaccurate or improperly influenced, and the litigation was not caused by any conduct, doubt or uncertainty attributable to him. Although the plaintiff's disability made a tutor appropriate and the tutor did not act unreasonably, those circumstances did not make it just to impose the burden of the unsuccessful claim on the executrices or residuary beneficiaries, who had already borne their own costs.

Court Disposition

The plaintiff's application for an order for her costs out of the estate was dismissed.

Orders

  • ["The plaintiff's application for an order for her costs out of the estate is dismissed."]