Baumanis bht Baumanis v Brennan (No 2) [2024] NSWSC 843

Baumanis bht Baumanis v Brennan (No 2) [2024] NSWSC 843

The defendant's deliberate failure to participate until immediately before the first hearing, coupled with the provision of a false affidavit at the 25 March 2024 hearing, constituted relevant delinquency causing needless costs to the plaintiffs and justified indemnity costs for that hearing. However, because a hearing was always likely to be required and costs orders are not punitive, it was not appropriate to order indemnity costs for all costs after 25 March 2024. Costs should otherwise follow the event and be paid out of the notional estate rather than personally by the defendant.

Jurisdiction
Australia
Judgment Date
11 July 2024
Procedural Posture
Costs Application in Family Provision Proceedings Concerning a Deceased Estate and Notional Estate / Post Judgment Application on the Papers to Vary Costs Order
Outcome
The plaintiffs obtained a variation of the costs order in part: ordinary costs out of the notional estate, with indemnity costs limited to the hearing on 25 March 2024; no administrator was to be appointed; liberty to restore was granted.
Legal Topics
['party/party Costs' 'costs Payable Out of a Fund' 'indemnity Costs' 'notional Estate' 'family Provision Proceedings' 'relevant Delinquency in Conduct of Litigation']
['costs' 'equity' 'succession and Deceased Estates'] ['party/party Costs' 'costs Payable Out of a Fund' 'indemnity Costs' 'notional Estate' 'family Provision Proceedings' 'relevant Delinquency in Conduct of Litigation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Application in Family Provision Proceedings Concerning a Deceased Estate and Notional Estate / Post Judgment Application on the Papers to Vary Costs Order

Legal Issues

  1. 1 ["Whether the plaintiffs' costs should follow the event and be paid out of the notional estate." "Whether the defendant's conduct in the proceedings justified an indemnity costs order." "Whether the defendant should be personally liable for the plaintiffs' costs rather than costs being paid out of the notional estate." 'Whether an administrator should be appointed to realise the notional estate in light of the defendant listing the relevant properties for sale.']

Ratio Decidendi

The defendant's deliberate failure to participate until immediately before the first hearing, coupled with the provision of a false affidavit at the 25 March 2024 hearing, constituted relevant delinquency causing needless costs to the plaintiffs and justified indemnity costs for that hearing. However, because a hearing was always likely to be required and costs orders are not punitive, it was not appropriate to order indemnity costs for all costs after 25 March 2024. Costs should otherwise follow the event and be paid out of the notional estate rather than personally by the defendant.

Court Disposition

The plaintiffs obtained a variation of the costs order in part: ordinary costs out of the notional estate, with indemnity costs limited to the hearing on 25 March 2024; no administrator was to be appointed; liberty to restore was granted.

Orders

  • ['Vary order 9 made on 5 June 2024 to read: "Order that plaintiffs\' costs on the ordinary basis as agreed or assessed be paid out of the notional estate of the late William John Baumanis, save that the plaintiffs\' costs of the hearing on 25 March 2024 are to be paid on the indemnity basis"' 'Note that no...