Sun v Chapman (No 2) [2021] NSWSC 1231

Sun v Chapman (No 2) [2021] NSWSC 1231

Although Rose was unsuccessful and would have been significantly better off had she accepted the Executor's offer, her rejection of the offer was not unreasonable in all the circumstances because her case concerning the relationship with Richard was not reckless or foolish, Richard's statutory declaration and conduct contributed to understandable confusion about the relationship, and Richard's conduct contributed to the cost of resolving that complicated relationship. It was therefore not appropriate to require Rose to pay the Executor's costs, but the Executor was entitled to be indemnified out of the estate for his costs of defending the proceedings.

Jurisdiction
Australia
Judgment Date
30 September 2021
Procedural Posture
Costs Determination in Family Provision Proceedings Concerning a Deceased Estate / On the Papers After Dismissal of the Plaintiff's Summons Seeking a Family Provision Order
Outcome
No order as to costs against the plaintiff; defendant indemnified out of the estate for his costs of defending the proceedings.
Legal Topics
['party/party Costs' 'costs Payable Out of a Fund' 'deceased Estate' 'unsuccessful Family Provision Applicant' 'settlement Offer' 'executor Indemnification']
['costs' 'succession'] ['party/party Costs' 'costs Payable Out of a Fund' 'deceased Estate' 'unsuccessful Family Provision Applicant' 'settlement Offer' 'executor Indemnification']

Case Brief

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Procedural Posture

Costs Determination in Family Provision Proceedings Concerning a Deceased Estate / On the Papers After Dismissal of the Plaintiff's Summons Seeking a Family Provision Order

Legal Issues

  1. 1 ["Whether the unsuccessful plaintiff should be ordered to pay the defendant executor's costs of the proceedings." "Whether the plaintiff's rejection of the defendant's 30 March 2021 offer was unreasonable so as to justify ordinary and indemnity costs against her." 'Whether the defendant executor should be indemnified out of the estate for his costs of defending the proceedings.']

Ratio Decidendi

Although Rose was unsuccessful and would have been significantly better off had she accepted the Executor's offer, her rejection of the offer was not unreasonable in all the circumstances because her case concerning the relationship with Richard was not reckless or foolish, Richard's statutory declaration and conduct contributed to understandable confusion about the relationship, and Richard's conduct contributed to the cost of resolving that complicated relationship. It was therefore not appropriate to require Rose to pay the Executor's costs, but the Executor was entitled to be indemnified out of the estate for his costs of defending the proceedings.

Court Disposition

No order as to costs against the plaintiff; defendant indemnified out of the estate for his costs of defending the proceedings.

Orders

  • ['There be no order as to costs against the plaintiff.' 'The defendant be indemnified out of the estate for his costs of defending these proceedings.']