Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 1117

Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 1117

The Defendant was ordered to personally pay the Plaintiff's costs on the ordinary basis because the ordinary rule that costs follow the event applied. The proceeding was not probate litigation and did not warrant application of the probate exception by analogy. Although Mr Novick's conduct was central to the equitable estoppel claim, the substance and conduct of the litigation showed that the Defendant played an adversarial role, challenged key elements of the Plaintiff's case, and acted in substance for her own benefit as sole beneficiary rather than for the benefit of the estate. Accordingly, neither party's costs should be borne by the estate.

Jurisdiction
Australia
Judgment Date
20 July 2018
Procedural Posture
Costs in Equity Technology and Construction List Proceedings Concerning Equitable Estoppel and Breach of Contract Claims / Costs Determination After Judgment for the Plaintiff and Declarations and Sale Related Orders
Outcome
Defendant to personally pay the Plaintiff's costs on an ordinary basis; neither party's costs are to be borne by the estate.
Legal Topics
['costs Follow the Event' 'probate Exception to Costs' 'trustee or Executor Indemnity From Estate' 'adversarial Conduct by Executor and Beneficiary' 'equitable Estoppel Claim Against Deceased Estate']
['costs' 'equity' 'trusts and Estates' 'probate and Administration'] ['costs Follow the Event' 'probate Exception to Costs' 'trustee or Executor Indemnity From Estate' 'adversarial Conduct by Executor and Beneficiary' 'equitable Estoppel Claim Against Deceased Estate']

Case Brief

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Procedural Posture

Costs in Equity Technology and Construction List Proceedings Concerning Equitable Estoppel and Breach of Contract Claims / Costs Determination After Judgment for the Plaintiff and Declarations and Sale Related Orders

Legal Issues

  1. 1 ['Whether the ordinary rule that costs follow the event should apply.' "Whether the deceased estate should bear the parties' costs under the probate exception or by analogy because the testator was said to have caused the litigation." 'Whether the Defendant, as executor and trustee, should be indemnified for her costs from the estate.' 'Whether the Defendant acted in substance for her own benefit and in an adversarial role rather than for the benefit of the estate.']

Ratio Decidendi

The Defendant was ordered to personally pay the Plaintiff's costs on the ordinary basis because the ordinary rule that costs follow the event applied. The proceeding was not probate litigation and did not warrant application of the probate exception by analogy. Although Mr Novick's conduct was central to the equitable estoppel claim, the substance and conduct of the litigation showed that the Defendant played an adversarial role, challenged key elements of the Plaintiff's case, and acted in substance for her own benefit as sole beneficiary rather than for the benefit of the estate. Accordingly, neither party's costs should be borne by the estate.

Court Disposition

Defendant to personally pay the Plaintiff's costs on an ordinary basis; neither party's costs are to be borne by the estate.

Orders

  • ["The Defendant is to personally pay the Plaintiff's costs on an ordinary basis." 'The parties are invited to provide short minutes of order to reflect the reasons as soon as practicable.']