M Raiola and I Raiola In Andreatta v M Raiola [2014] NSWSC 1172

M Raiola and I Raiola In Andreatta v M Raiola [2014] NSWSC 1172

Although Massimo had been treated unfairly in some respects and Maurizio conceded reimbursement of funeral costs, Massimo's family provision claim always faced substantial difficulty because of his strong financial position and capacity to support his family, so the usual rule required him to pay the costs referable to his unsuccessful claim. Imma's claim was reasonably brought and borderline, and a costs order would have a real adverse impact on her difficult financial position, so no costs order was made against her. The defendant's remaining costs were ordered to be paid out of the deceased's estate on the indemnity basis.

Jurisdiction
Australia
Judgment Date
25 August 2014
Procedural Posture
Costs in Family Provision Proceedings / Costs Determination After Dismissal of Plaintiffs' Family Provision Claims
Outcome
Summons dismissed; costs orders made.
Legal Topics
['family Provision Claim Costs' 'costs Follow the Event' 'costs Out of Estate' 'indemnity Costs' 'unsuccessful Applicants']
['civil Procedure' 'succession' 'costs'] ['family Provision Claim Costs' 'costs Follow the Event' 'costs Out of Estate' 'indemnity Costs' 'unsuccessful Applicants']

Case Brief

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Procedural Posture

Costs in Family Provision Proceedings / Costs Determination After Dismissal of Plaintiffs' Family Provision Claims

Legal Issues

  1. 1 ["Whether costs should follow the event after the plaintiffs' unsuccessful family provision claims." "Whether the first plaintiff's costs should be paid out of the deceased's estate or whether there should be no order as to his costs." "Whether there should be no order as to the second plaintiff's costs because her claim was reasonably brought and a costs order would adversely affect her financial position." 'Whether costs should be ordered jointly and severally against the plaintiffs.']

Ratio Decidendi

Although Massimo had been treated unfairly in some respects and Maurizio conceded reimbursement of funeral costs, Massimo's family provision claim always faced substantial difficulty because of his strong financial position and capacity to support his family, so the usual rule required him to pay the costs referable to his unsuccessful claim. Imma's claim was reasonably brought and borderline, and a costs order would have a real adverse impact on her difficult financial position, so no costs order was made against her. The defendant's remaining costs were ordered to be paid out of the deceased's estate on the indemnity basis.

Court Disposition

Summons dismissed; costs orders made.

Orders

  • ['The Summons be dismissed.' "The First Plaintiff pay 50% of the Defendant's costs of the proceedings as agreed or as assessed." "There be no order as to the Second Plaintiff's costs of the proceedings." "The Defendant's costs of the proceedings otherwise be paid out of the deceased's estate on the indemnity basis."...