Wilson v Wright; Wilson v Wright (No 2) [2024] NSWSC 616

Wilson v Wright; Wilson v Wright (No 2) [2024] NSWSC 616

Because the plaintiffs' costs exceeded the amount ultimately obtained by way of provision, the Estate was relatively modest, and any costs order would further reduce the defendant's legacy where she was found to be the natural object of the deceased's testamentary intention, the overall justice of the case required that the plaintiffs recover only a portion of their costs from the Estate. Given the costs information provided, it was appropriate to fix the plaintiffs' recoverable costs as a gross sum under s 98(4)(c) of the Civil Procedure Act 2005 (NSW), resulting in an order for $66,000, while the agreed order for the defendant's indemnity costs to be paid from the Estate was made.

Jurisdiction
Australia
Judgment Date
23 May 2024
Procedural Posture
Costs in Deceased Estate Family Provision Proceedings / Costs Reserved Following Principal Judgment; Determined on the Papers
Outcome
Defendant's indemnity costs ordered to be paid out of the Estate; plaintiffs awarded a fixed gross sum of $66,000 on account of their costs, to be paid by the defendant from the Estate.
Legal Topics
['costs Payable Out of a Deceased Estate' 'costs Capping Order' 'gross Sum Costs Order' 'indemnity Costs' 'ordinary Basis Costs' 'family Provision']
['costs' 'equity' 'succession'] ['costs Payable Out of a Deceased Estate' 'costs Capping Order' 'gross Sum Costs Order' 'indemnity Costs' 'ordinary Basis Costs' 'family Provision']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs in Deceased Estate Family Provision Proceedings / Costs Reserved Following Principal Judgment; Determined on the Papers

Legal Issues

  1. 1 ["Whether the defendant's costs should be paid out of the Estate on the indemnity basis." "Whether the plaintiffs' costs should be paid out of the Estate on the ordinary basis without limitation, capped, or fixed as a gross sum." "Whether the liability of the Estate for the plaintiffs' costs should be limited having regard to the provision obtained, the size of the Estate, and the effect on the defendant's legacy."]

Ratio Decidendi

Because the plaintiffs' costs exceeded the amount ultimately obtained by way of provision, the Estate was relatively modest, and any costs order would further reduce the defendant's legacy where she was found to be the natural object of the deceased's testamentary intention, the overall justice of the case required that the plaintiffs recover only a portion of their costs from the Estate. Given the costs information provided, it was appropriate to fix the plaintiffs' recoverable costs as a gross sum under s 98(4)(c) of the Civil Procedure Act 2005 (NSW), resulting in an order for $66,000, while the agreed order for the defendant's indemnity costs to be paid from the Estate was made.

Court Disposition

Defendant's indemnity costs ordered to be paid out of the Estate; plaintiffs awarded a fixed gross sum of $66,000 on account of their costs, to be paid by the defendant from the Estate.

Orders

  • ["The defendant's costs to be paid out of the Estate on the indemnity basis." 'The defendant to pay $66,000 to the plaintiffs on account of their costs, such funds to be paid from the Estate.']