Chisak v Presot (No 2) [2021] NSWSC 754

Chisak v Presot (No 2) [2021] NSWSC 754

Given the plaintiff's lack of success on both the probate and family provision claims, and considering the timing and content of the defendants' offers of compromise, it was appropriate to depart partially from the default rule under UCPR r 42.15A and apportion costs. The plaintiff is ordered to pay 40 per cent of the defendants' indemnity costs; she is not entitled to receive her share of the residuary estate until those costs are paid, with appropriations to be made from her share if she does not pay. The remainder of the defendants' indemnity costs are to be paid out of the estate. No order is made for the plaintiff's costs.

Jurisdiction
Australia
Judgment Date
30 June 2021
Procedural Posture
Probate and Family Provision Proceedings / Determination of Costs After Substantive Judgment
Outcome
Plaintiff is to pay 40% of the defendants' indemnity costs; balance of defendants' indemnity costs to be paid out of the estate; plaintiff bears her own costs; plaintiff's share in estate to be withheld or appropriated to satisfy costs order.
Legal Topics
['costs' 'probate' 'family Provision' 'offers of Compromise' 'set Off in Estates']
['equity' 'succession' 'civil Procedure'] ['costs' 'probate' 'family Provision' 'offers of Compromise' 'set Off in Estates']

Case Brief

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Procedural Posture

Probate and Family Provision Proceedings / Determination of Costs After Substantive Judgment

Legal Issues

  1. 1 ["Whether the Court should order the plaintiff to pay the defendants' costs and in what proportion, given unsuccessful claims in probate and family provision proceedings" "Whether the defendants are entitled to appropriate costs owed from the plaintiff's entitlement to the residuary estate under the deceased's will" 'Application of Uniform Civil Procedure Rules 2005 (NSW) r 42.15A regarding offers of compromise in costs determinations']

Ratio Decidendi

Given the plaintiff's lack of success on both the probate and family provision claims, and considering the timing and content of the defendants' offers of compromise, it was appropriate to depart partially from the default rule under UCPR r 42.15A and apportion costs. The plaintiff is ordered to pay 40 per cent of the defendants' indemnity costs; she is not entitled to receive her share of the residuary estate until those costs are paid, with appropriations to be made from her share if she does not pay. The remainder of the defendants' indemnity costs are to be paid out of the estate. No order is made for the plaintiff's costs.

Court Disposition

Plaintiff is to pay 40% of the defendants' indemnity costs; balance of defendants' indemnity costs to be paid out of the estate; plaintiff bears her own costs; plaintiff's share in estate to be withheld or appropriated to satisfy costs order.

Orders

  • ["The Plaintiff is to pay 40 per cent of the Defendants' costs, calculated on the indemnity basis, of the proceedings." 'The Plaintiff is not entitled to receive distribution of her share of the residuary estate from the Defendants, as executors of the estate, until she pays into the estate the costs ordered to be...