Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 2) [2017] NSWSC 1362

Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 2) [2017] NSWSC 1362

Taking into account proportionality between costs, legacy, and estate size, and noting the overlap in factual issues between the proceedings, the plaintiff’s costs are capped at $100,000, to be paid from the estate (and, if necessary, the notional estate) on the ordinary basis (subject to notification and no contest by potential superannuation claimants), and the administrator’s costs are paid from the estate (or notional estate) on the indemnity basis. No part of the legacy is to be paid directly to Ms Gray absent her intervention as a party.

Jurisdiction
Australia
Judgment Date
09 October 2017
Procedural Posture
Estate Litigation, Family Provision, Costs Application / Post Judgment, Costs Determination
Outcome
Costs orders made: administrator's costs paid from the estate/notional estate on the indemnity basis; plaintiff's costs paid from the estate/notional estate on the ordinary basis, capped at $100,000; payment of Ms Wilson's legacy and costs subject to notice to potential superannuation claimants; other directions as...
Legal Topics
['costs' 'family Provision' 'estate Administration' 'notional Estate' 'legal Costs Capping' 'proportionality']
['equity' 'succession' 'civil Procedure'] ['costs' 'family Provision' 'estate Administration' 'notional Estate' 'legal Costs Capping' 'proportionality']

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Procedural Posture

Estate Litigation, Family Provision, Costs Application / Post Judgment, Costs Determination

Legal Issues

  1. 1 ["Whether the parties' costs should be paid out of the estate or otherwise; whether Ms Wilson’s costs should be capped; how to treat the Superannuation Fund as notional estate for meeting the legacy and/or costs; whether separate orders are justified for each proceeding; whether part of the legacy should be paid to Ms Gray"]

Ratio Decidendi

Taking into account proportionality between costs, legacy, and estate size, and noting the overlap in factual issues between the proceedings, the plaintiff’s costs are capped at $100,000, to be paid from the estate (and, if necessary, the notional estate) on the ordinary basis (subject to notification and no contest by potential superannuation claimants), and the administrator’s costs are paid from the estate (or notional estate) on the indemnity basis. No part of the legacy is to be paid directly to Ms Gray absent her intervention as a party.

Court Disposition

Costs orders made: administrator's costs paid from the estate/notional estate on the indemnity basis; plaintiff's costs paid from the estate/notional estate on the ordinary basis, capped at $100,000; payment of Ms Wilson's legacy and costs subject to notice to potential superannuation claimants; other directions as...

Orders

  • ['Notice must be given to other claimants to the Superannuation Fund before any legacy or costs paid from it as notional estate.' "Administrator's costs to be paid out of the estate/notional estate on the indemnity basis (if unopposed by potential super fund claimants)." "Plaintiff's legacy of $75,000 and her capped...