Finlay v Pereg (No 2) [2022] NSWSC 154

Finlay v Pereg (No 2) [2022] NSWSC 154

The application for special indemnity costs against the Sarusi defendants was refused because no Calderbank offer or offer of compromise in terms of the Arrangement was made, the Sarusi defendants were not formally joined until 9 October 2020 and the Court was not satisfied that costs should be ordered against them for a period before joinder, and the Court's decision on provision was based on the net distributable estate after legal expenses. John was entitled to costs from 21 April 2020 on the ordinary basis only, Moshe and Edna were entitled to costs on the indemnity basis as estate representatives, and the Sarusi defendants were not entitled to costs because they failed in their...

Jurisdiction
Australia
Judgment Date
21 February 2022
Procedural Posture
Equity Family Provision List / Costs Orders Consequent Upon the Principal Judgment
Outcome
Special costs orders against the Sarusi defendants were refused; final orders were to be made in accordance with the draft short minutes propounded by Moshe and Edna as amended to reflect the reasons.
Legal Topics
['family Provision Costs' 'indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'non Party Costs']
['costs' 'succession'] ['family Provision Costs' 'indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'non Party Costs']

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Procedural Posture

Equity Family Provision List / Costs Orders Consequent Upon the Principal Judgment

Legal Issues

  1. 1 ['Whether John, Moshe and Edna should receive special costs orders requiring their costs to be paid on the indemnity basis from 21 April 2020 because of the settlement Arrangement.' "Whether the Sarusi defendants should bear John, Moshe and Edna's costs incurred after the informal settlement conference." 'Whether the Sarusi defendants were entitled to their costs of the proceedings from the estate.' 'Whether John should receive his costs from 21 April 2020 and whether Moshe and Edna should receive their costs on the indemnity basis.']

Ratio Decidendi

The application for special indemnity costs against the Sarusi defendants was refused because no Calderbank offer or offer of compromise in terms of the Arrangement was made, the Sarusi defendants were not formally joined until 9 October 2020 and the Court was not satisfied that costs should be ordered against them for a period before joinder, and the Court's decision on provision was based on the net distributable estate after legal expenses. John was entitled to costs from 21 April 2020 on the ordinary basis only, Moshe and Edna were entitled to costs on the indemnity basis as estate representatives, and the Sarusi defendants were not entitled to costs because they failed in their...

Court Disposition

Special costs orders against the Sarusi defendants were refused; final orders were to be made in accordance with the draft short minutes propounded by Moshe and Edna as amended to reflect the reasons.

Orders

  • ['John is to have his costs out of the estate on the ordinary basis from 21 April 2020.' "There is no order as to John's costs incurred on or before 21 April 2020." 'Moshe and Edna are to have their costs of the proceedings on the indemnity basis.' "John, Moshe and Edna's costs are not to be specially visited upon...