Gianna (Jenny) Angius v Gordon Albert Salier (No 2) [2018] NSWSC 1454

Gianna (Jenny) Angius v Gordon Albert Salier (No 2) [2018] NSWSC 1454

Where the notice of motion yields an outcome where each party achieves an equal measure of success and failure, and the proceedings are such that costs paid out of the estate would ultimately fall on the respective shares of the very parties seeking such payment, the appropriate order is that each party bear their own costs. The administrator's necessary and efficient involvement justified an award of his costs on the indemnity basis out of the estate.

Parties
Applicant: Robert Angius; First Respondent/plaintiff: Gianna (Jenny) Angius; Second Respondent/defendant: Gordon Albert Salier
Jurisdiction
Australia
Judgment Date
26 September 2018
Procedural Posture
Equity Family Provision/probate / Costs Order Following Determination of Notice of Motion; Proceedings Stood Over for Directions
Outcome
Costs determined as follows: administrator's costs of motion payable out of estate on indemnity basis; no order as to costs for Robert Angius and Gianna (Jenny) Angius; each party to bear their own costs. Proceedings stood over for directions.
Legal Topics
Costs, Party/party Costs, Costs From Estate, Indemnity Basis, Family Provision Application
Equity Succession Family Provision Probate Costs Party/party Costs Costs From Estate Indemnity Basis +1 more

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Parties

Robert Angius

Applicant

Gianna (Jenny) Angius

First Respondent/plaintiff

Gordon Albert Salier

Second Respondent/defendant

Procedural Posture

Equity Family Provision/probate / Costs Order Following Determination of Notice of Motion; Proceedings Stood Over for Directions

Legal Issues

  1. 1 Who should bear the costs of the notice of motion filed by Robert Angius on 3 April 2018?
  2. 2 Whether costs should be paid out of the estate or by the parties themselves.
  3. 3 Appropriate costs order where each party has had a partial success and failure.

Ratio Decidendi

Where the notice of motion yields an outcome where each party achieves an equal measure of success and failure, and the proceedings are such that costs paid out of the estate would ultimately fall on the respective shares of the very parties seeking such payment, the appropriate order is that each party bear their own costs. The administrator's necessary and efficient involvement justified an award of his costs on the indemnity basis out of the estate.

Court Disposition

Costs determined as follows: administrator's costs of motion payable out of estate on indemnity basis; no order as to costs for Robert Angius and Gianna (Jenny) Angius; each party to bear their own costs. Proceedings stood over for directions.

Orders

  • Order that the costs of Gordon Albert Salier, as administrator of the estate of the late Laura Angius, of the notice of motion filed by Robert Angius on 3 April 2018, be paid out of the estate on the indemnity basis.
  • Order that no order for costs be made in favour of or against Robert Angius and Gianna (Jenny) Angius of the notice of motion filed by Robert Angius on 3 April 2018, with the intent that each of those parties will bear their own costs of the notice of motion.