Mikan v Velcic (No 2) [2011] NSWSC 505

Mikan v Velcic (No 2) [2011] NSWSC 505

Although the Plaintiff failed in her family provision claim and there was no basis for ordering her costs out of the estate, the overall justice of the case, including that the deceased died intestate, the Plaintiff was under a legal incapacity and required a tutor, and an order requiring her to pay all of the Defendant's costs would further reduce her modest intestacy provision, justified making no order as to her costs and ordering the Defendant's costs of the proceedings, calculated on the indemnity basis, to be paid out of the deceased's estate. The order was confined to costs of the proceedings and did not include costs of obtaining administration.

Jurisdiction
Australia
Judgment Date
03 June 2011
Procedural Posture
Costs Determination Following Dismissal of Family Provision Proceedings / Post Judgment Costs Application After the Plaintiff's Proceedings Were Dismissed
Outcome
No order as to the Plaintiff's costs; the Defendant's costs of the proceedings, calculated on the indemnity basis, are to be paid out of the deceased's estate.
Legal Topics
['costs Discretion' 'costs Following the Event' 'indemnity Costs' 'costs Out of Deceased Estate' 'unsuccessful Family Provision Applicant' 'administration Costs Distinguished From Proceedings Costs']
['civil Procedure' 'succession' 'family Provision' 'costs'] ['costs Discretion' 'costs Following the Event' 'indemnity Costs' 'costs Out of Deceased Estate' 'unsuccessful Family Provision Applicant' 'administration Costs Distinguished From Proceedings Costs']

Case Brief

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Procedural Posture

Costs Determination Following Dismissal of Family Provision Proceedings / Post Judgment Costs Application After the Plaintiff's Proceedings Were Dismissed

Legal Issues

  1. 1 ["Whether the Plaintiff's costs of the dismissed proceedings should be paid out of the deceased's estate." "Whether the Defendant's costs should be paid by the Plaintiff or out of the deceased's estate." "Whether the Defendant's costs should be calculated on the indemnity basis." 'Whether costs of the proceedings should be distinguished from costs of obtaining administration of the estate.']

Ratio Decidendi

Although the Plaintiff failed in her family provision claim and there was no basis for ordering her costs out of the estate, the overall justice of the case, including that the deceased died intestate, the Plaintiff was under a legal incapacity and required a tutor, and an order requiring her to pay all of the Defendant's costs would further reduce her modest intestacy provision, justified making no order as to her costs and ordering the Defendant's costs of the proceedings, calculated on the indemnity basis, to be paid out of the deceased's estate. The order was confined to costs of the proceedings and did not include costs of obtaining administration.

Court Disposition

No order as to the Plaintiff's costs; the Defendant's costs of the proceedings, calculated on the indemnity basis, are to be paid out of the deceased's estate.

Orders

  • ["No order as to the Plaintiff's costs, to the intent that she will pay her own costs of the proceedings." 'The costs of the Defendant of the proceedings, calculated on the indemnity basis, are to be paid out of the estate of the deceased.' 'The Exhibits and Court Books to be returned.']