Wheatley v Lakshmanan (No 2) [2022] NSWSC 851

Wheatley v Lakshmanan (No 2) [2022] NSWSC 851

The Court held that neither party's proposed costs regime was appropriate. Although the plaintiff succeeded in obtaining family provision, she failed on discrete issues, made a forensic decision to continue the litigation after tax consequences became clear, incurred disproportionate costs, and should not recover...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
28 June 2022
Procedural Posture
Costs in Succession and Family Provision Proceedings / Determination on the Papers After Principal Judgment
Outcome
Costs orders made; plaintiff awarded a net capped and fixed amount out of the estate and first defendant entitled to recoup executor's costs from the estate.
Legal Topics
['capping of Costs' 'gross Sum Costs Orders' 'calderbank Offers' 'party/party Costs' 'indemnity Costs From Estate' 'disproportionate Costs']
['costs' 'succession' 'family Provision'] ['capping of Costs' 'gross Sum Costs Orders' 'calderbank Offers' 'party/party Costs' 'indemnity Costs From Estate' 'disproportionate Costs']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Costs in Succession and Family Provision Proceedings / Determination on the Papers After Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff should recover a capped or gross sum amount for costs out of the deceased estate.' "Whether the plaintiff should pay part of the defendants' costs because she failed on discrete issues and rejected settlement offers." "Whether non-acceptance of the defendants' Calderbank offers was unreasonable." 'Whether the first defendant as executor should recoup costs from the estate on the indemnity basis.' "Whether costs relating to Mr Gangemi's evidence and the ATO tax ruling should be borne by the plaintiff."]

Ratio Decidendi

The Court held that neither party's proposed costs regime was appropriate. Although the plaintiff succeeded in obtaining family provision, she failed on discrete issues, made a forensic decision to continue the litigation after tax consequences became clear, incurred disproportionate costs, and should not recover costs of Mr Gangemi's evidence or the ATO ruling. The Court was not satisfied that rejection of the Calderbank offers was unreasonable, but the offers and the disproportionate conduct of the litigation remained relevant to the broad costs discretion. A balanced capped and fixed costs outcome was required so that the estate was not unduly burdened and the plaintiff was not...

Court Disposition

Costs orders made; plaintiff awarded a net capped and fixed amount out of the estate and first defendant entitled to recoup executor's costs from the estate.

Orders

  • ['The plaintiff be paid the net sum of $160,000 out of the estate of the late Dianne Victoria Lakshmanan as a capped and fixed amount towards her costs of the proceeding on a party/party basis (and taking into account the amount ordered by Hallen J to be paid by her to the defendants in October 2020).' 'The first...