Durham v Durham [2010] NSWSC 482

Durham v Durham [2010] NSWSC 482

Although the plaintiff's claim was not without merit and was a borderline case with unusual features, the proposed order that both parties' costs be paid out of the estate on an indemnity basis was outside the normal reasonable exercise of discretion in Family Provision Act matters. The appropriate order was that each party bear his or their own costs, with the defendants' costs to be paid out of the estate on an indemnity basis.

Jurisdiction
Australia
Judgment Date
17 May 2010
Procedural Posture
Family Provision Costs Ruling / Ex Tempore Judgment on Costs After Plaintiff's Claim Failed
Outcome
Each party to bear his or their own costs, with defendants' costs to be paid out of the estate on an indemnity basis.
Legal Topics
['family Provision Claims' 'unsuccessful Plaintiff' 'extension of Time' 'indemnity Costs From Estate']
['costs' 'succession'] ['family Provision Claims' 'unsuccessful Plaintiff' 'extension of Time' 'indemnity Costs From Estate']

Case Brief

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Procedural Posture

Family Provision Costs Ruling / Ex Tempore Judgment on Costs After Plaintiff's Claim Failed

Legal Issues

  1. 1 ["Whether the plaintiff should pay the defendants' costs after his Family Provision Act claim failed." "Whether each party's costs should be paid out of the testator's estate on an indemnity basis." "Whether the plaintiff's unsuccessful claim was a borderline case warranting no order for costs against him."]

Ratio Decidendi

Although the plaintiff's claim was not without merit and was a borderline case with unusual features, the proposed order that both parties' costs be paid out of the estate on an indemnity basis was outside the normal reasonable exercise of discretion in Family Provision Act matters. The appropriate order was that each party bear his or their own costs, with the defendants' costs to be paid out of the estate on an indemnity basis.

Court Disposition

Each party to bear his or their own costs, with defendants' costs to be paid out of the estate on an indemnity basis.

Orders

  • ['Each party bear his or their own costs.' 'The costs of the defendants will be paid out of the estate on an indemnity basis.']