Dion v Rieser (No 2) [2010] NSWSC 113

Dion v Rieser (No 2) [2010] NSWSC 113

Although the plaintiff succeeded, the ordinary rule that costs follow the event should not be applied because her entitlement depended on elaborate facts about a de facto relationship, the defendants reasonably tested the evidence, and much of the doubt and difficulty was caused by the intestate's own unclear conduct. The plaintiff's costs of establishing her relationship and entitlement were therefore necessary costs of establishing entitlement to the New South Wales assets and may be paid or retained from those assets, while the defendants should bear their own costs.

Jurisdiction
Australia
Judgment Date
24 February 2010
Procedural Posture
Probate Litigation Concerning an Application for Letters of Administration and a Declaratory Order / Consequential Costs Orders After Judgment on the Declaratory Order
Outcome
The Court made consequential costs orders departing from the ordinary costs-follow-the-event rule.
Legal Topics
['costs in Probate Litigation' 'de Facto Relationship' 'letters of Administration' 'costs Following the Event' 'costs Out of Estate']
['costs' 'probate'] ['costs in Probate Litigation' 'de Facto Relationship' 'letters of Administration' 'costs Following the Event' 'costs Out of Estate']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Probate Litigation Concerning an Application for Letters of Administration and a Declaratory Order / Consequential Costs Orders After Judgment on the Declaratory Order

Legal Issues

  1. 1 ['Whether the ordinary rule that costs follow the event should be applied after the plaintiff succeeded on the declaratory order.' "Whether the defendants acted unreasonably in opposing the plaintiff's claim or requiring overseas witnesses to attend." "Whether the plaintiff's costs should be paid or retained out of the intestate's assets situated in New South Wales." "Whether any order should be made for the defendants' costs."]

Ratio Decidendi

Although the plaintiff succeeded, the ordinary rule that costs follow the event should not be applied because her entitlement depended on elaborate facts about a de facto relationship, the defendants reasonably tested the evidence, and much of the doubt and difficulty was caused by the intestate's own unclear conduct. The plaintiff's costs of establishing her relationship and entitlement were therefore necessary costs of establishing entitlement to the New South Wales assets and may be paid or retained from those assets, while the defendants should bear their own costs.

Court Disposition

The Court made consequential costs orders departing from the ordinary costs-follow-the-event rule.

Orders

  • ['The costs of the plaintiff of and incidental to proceedings on the statement of claim relating to the declaratory order may be paid or retained by her out of the assets of the intestate situated in New South Wales.' 'No order as to the costs of the defendants, with the intent that they pay their own costs.']