Sung v Malaxos (No 2) [2015] NSWSC 290

Sung v Malaxos (No 2) [2015] NSWSC 290

Given the plaintiff's lack of merit in her claim, her unreasonable refusal of multiple reasonable settlement offers, and the absence of compelling discretionary factors, the 'overall justice of the case' requires that the plaintiff bear both her own and the defendant's costs. Indemnity costs are awarded from the date of the first reasonable offer in accordance with UCPR 42.15A.

Parties
Plaintiff: Rosetta Kai Sung; Defendant: Nick Malaxos
Jurisdiction
Australia
Judgment Date
25 March 2015
Procedural Posture
Family Provision Claim (succession) / Post Trial, Costs Determination
Outcome
Plaintiff ordered to pay defendant's costs; plaintiff to pay her own costs; occupation orders for Lilyfield property made against plaintiff.
Legal Topics
Family Provision, Costs Orders, Offers of Compromise, Indemnity Costs
Succession Law Civil Procedure Family Provision Costs Orders Offers of Compromise Indemnity Costs

Case Brief

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Parties

Rosetta Kai Sung

Plaintiff

Nick Malaxos

Defendant

Procedural Posture

Family Provision Claim (succession) / Post Trial, Costs Determination

Legal Issues

  1. 1 Whether the unsuccessful plaintiff should pay the defendant's costs in a family provision claim
  2. 2 Whether there are discretionary factors justifying payment of the plaintiff's costs out of the estate

Ratio Decidendi

Given the plaintiff's lack of merit in her claim, her unreasonable refusal of multiple reasonable settlement offers, and the absence of compelling discretionary factors, the 'overall justice of the case' requires that the plaintiff bear both her own and the defendant's costs. Indemnity costs are awarded from the date of the first reasonable offer in accordance with UCPR 42.15A.

Court Disposition

Plaintiff ordered to pay defendant's costs; plaintiff to pay her own costs; occupation orders for Lilyfield property made against plaintiff.

Orders

  • Plaintiff to pay defendant's costs on the ordinary basis up to 6 June 2014 and on the indemnity basis from 7 June 2014.
  • Plaintiff to pay her own costs.