Rathswohl v Court (No 2) [2021] NSWSC 505

Rathswohl v Court (No 2) [2021] NSWSC 505

Costs should not be capped as there was no evidence of excessiveness; plaintiff's provision and costs are appropriate given circumstances and the offer of compromise regime. Defendant's request to preserve net estate would defeat purpose of statutory compromise regime.

Parties
Plaintiff: Robert Rathswohl; Defendant: Yvette Court
Jurisdiction
Australia
Judgment Date
05 May 2021
Procedural Posture
Family Provision / Final Orders
Outcome
Provision made for plaintiff; costs (including indemnity costs) and interest awarded; orders as per plaintiff's proposed short minutes.
Legal Topics
Costs, Offer of Compromise, Provision From Estate, Interest, Cost Capping
Equity Family Provision Costs Offer of Compromise Provision From Estate Interest Cost Capping

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Parties

Robert Rathswohl

Plaintiff

Yvette Court

Defendant

Procedural Posture

Family Provision / Final Orders

Legal Issues

  1. 1 Whether the plaintiff's costs should be capped to preserve net estate for the defendant
  2. 2 Entitlement to costs (including indemnity costs) following non-acceptance of offer of compromise
  3. 3 Calculation of provision from estate

Ratio Decidendi

Costs should not be capped as there was no evidence of excessiveness; plaintiff's provision and costs are appropriate given circumstances and the offer of compromise regime. Defendant's request to preserve net estate would defeat purpose of statutory compromise regime.

Court Disposition

Provision made for plaintiff; costs (including indemnity costs) and interest awarded; orders as per plaintiff's proposed short minutes.

Orders

  • Plaintiff to receive lump sum of $500,000 in lieu of will provision.
  • Interest as for a legacy under Probate and Administration Act 1898 (NSW) to run on unpaid balance after 3 months.