Vanderloo v Milne (No 2) [2015] NSWSC 555

Vanderloo v Milne (No 2) [2015] NSWSC 555

The plaintiff's unsuccessful family provision claim did not warrant an indemnity costs order because the 5 August 2013 offer was not an effective Calderbank offer, including because it involved withdrawal of the executors' separate superannuation appeal, the value of which the Court could not assess. However, applying the prima facie rule for dismissed family provision claims, the plaintiff should pay the executors' costs on the ordinary basis from 24 September 2013, when the executors paid him $255,186.85 of his entitlement and he could no longer be regarded as successful in forcing that distribution.

Jurisdiction
Australia
Judgment Date
13 May 2015
Procedural Posture
Costs Decision Following Dismissal of Family Provision Claim Under S 59 of the Succession Act 2006 (nsw) / Decided on the Papers After Written Submissions on Executors' Costs
Outcome
The plaintiff was ordered to pay the defendants' costs on the ordinary basis from 24 September 2013; no indemnity costs order was made against him.
Legal Topics
['family Provision' "executors' Costs" 'calderbank Offer' 'indemnity Costs' 'ordinary Costs' 'late Application']
['succession' 'costs'] ['family Provision' "executors' Costs" 'calderbank Offer' 'indemnity Costs' 'ordinary Costs' 'late Application']

Case Brief

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Procedural Posture

Costs Decision Following Dismissal of Family Provision Claim Under S 59 of the Succession Act 2006 (nsw) / Decided on the Papers After Written Submissions on Executors' Costs

Legal Issues

  1. 1 ["Whether the plaintiff should be ordered to pay the executors' costs after his family provision claim was dismissed." "Whether the defendants' 5 August 2013 Calderbank offer justified an indemnity costs order from 5 August 2013." "Whether the plaintiff should pay the executors' costs only from the date the executors paid him part of his entitlement from the estate."]

Ratio Decidendi

The plaintiff's unsuccessful family provision claim did not warrant an indemnity costs order because the 5 August 2013 offer was not an effective Calderbank offer, including because it involved withdrawal of the executors' separate superannuation appeal, the value of which the Court could not assess. However, applying the prima facie rule for dismissed family provision claims, the plaintiff should pay the executors' costs on the ordinary basis from 24 September 2013, when the executors paid him $255,186.85 of his entitlement and he could no longer be regarded as successful in forcing that distribution.

Court Disposition

The plaintiff was ordered to pay the defendants' costs on the ordinary basis from 24 September 2013; no indemnity costs order was made against him.

Orders

  • ["In addition to the orders made on 19 December 2014, the plaintiff is to pay the defendants' costs on the ordinary basis from 24 September 2013."]