Coss v Norman (No 2) [2021] NSWSC 1490

Coss v Norman (No 2) [2021] NSWSC 1490

There is no sufficient reason to depart from the usual rule in family provision cases that the unsuccessful plaintiff pay the defendant's costs. The plaintiff's application was for advancement rather than maintenance, and his financial position, while affected by the costs order, did not justify such departure. Defendant is entitled to recover solicitor-client costs from the estate, and plaintiff must reimburse the estate for the party-party costs.

Jurisdiction
Australia
Judgment Date
19 November 2021
Procedural Posture
Family Provision Application / Costs Decision Following Judgment
Outcome
Plaintiff ordered to pay defendant's party-party costs; defendant's solicitor-client costs to be paid out of the estate.
Legal Topics
['costs' 'family Provision' 'incidence of Costs' 'estate Litigation']
['succession Law' 'equity' 'civil Procedure'] ['costs' 'family Provision' 'incidence of Costs' 'estate Litigation']

Case Brief

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Procedural Posture

Family Provision Application / Costs Decision Following Judgment

Legal Issues

  1. 1 ['Whether there should be departure from the usual order as to costs in family provision cases' "Whether the plaintiff should pay the defendant's costs given his financial position" 'Incidence and assessment of solicitor-client and party-party costs in estate litigation']

Ratio Decidendi

There is no sufficient reason to depart from the usual rule in family provision cases that the unsuccessful plaintiff pay the defendant's costs. The plaintiff's application was for advancement rather than maintenance, and his financial position, while affected by the costs order, did not justify such departure. Defendant is entitled to recover solicitor-client costs from the estate, and plaintiff must reimburse the estate for the party-party costs.

Court Disposition

Plaintiff ordered to pay defendant's party-party costs; defendant's solicitor-client costs to be paid out of the estate.

Orders

  • ["Order that the defendant's solicitor-client costs of the proceedings be paid out of the estate of the late David Henry Norman." "Order that the plaintiff reimburse the estate for the defendant's party-party costs of the proceedings, assessed on the ordinary basis."]