Bkassini v Sarkis (No 3) [2021] NSWSC 1609

Bkassini v Sarkis (No 3) [2021] NSWSC 1609

The dispute about final orders was part of the outworking and clarification of the substantive family provision orders made on 5 July 2018, and the plaintiff achieved sufficient success on the repair-work issue to justify the conventional family provision costs order. Because the estate lacked funds and the plaintiff risked non-payment of costs to which he was entitled, the Court considered it appropriate under s 59 of the Succession Act 2006 (NSW), and any available power under s 98 of the Civil Procedure Act 2005 (NSW), to secure the plaintiff's costs by an equitable charge over the defendant's interest in No 95.

Jurisdiction
Australia
Judgment Date
10 December 2021
Procedural Posture
Succession — Family Provision — Costs / Consequential Orders on the Papers After Primary Judgment and Substantive Orders
Outcome
Final consequential orders made substantially in the plaintiff's proposed form, with order 6 modified so that the defendant estate pays the plaintiff's costs from 5 July 2018 on the ordinary basis and the defendant is entitled to her costs for that period out of the defendant estate on the indemnity basis.
Legal Topics
['crisp Order' 'costs After Substantive Orders' 'equitable Charge Over Estate Property' 'executor Costs From Estate' 'rectification and Repair Works to Estate Property']
['succession' 'family Provision' 'costs' 'equity'] ['crisp Order' 'costs After Substantive Orders' 'equitable Charge Over Estate Property' 'executor Costs From Estate' 'rectification and Repair Works to Estate Property']

Case Brief

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Procedural Posture

Succession — Family Provision — Costs / Consequential Orders on the Papers After Primary Judgment and Substantive Orders

Legal Issues

  1. 1 ["Whether the defendant estate should pay the plaintiff's costs of the proceedings from 5 July 2018 or whether each party should bear their own costs for that period." "Whether the plaintiff's costs should be secured by an equitable charge over the defendant's interest in No 95." 'What final orders should be made concerning rectification and repair works to No 95.']

Ratio Decidendi

The dispute about final orders was part of the outworking and clarification of the substantive family provision orders made on 5 July 2018, and the plaintiff achieved sufficient success on the repair-work issue to justify the conventional family provision costs order. Because the estate lacked funds and the plaintiff risked non-payment of costs to which he was entitled, the Court considered it appropriate under s 59 of the Succession Act 2006 (NSW), and any available power under s 98 of the Civil Procedure Act 2005 (NSW), to secure the plaintiff's costs by an equitable charge over the defendant's interest in No 95.

Court Disposition

Final consequential orders made substantially in the plaintiff's proposed form, with order 6 modified so that the defendant estate pays the plaintiff's costs from 5 July 2018 on the ordinary basis and the defendant is entitled to her costs for that period out of the defendant estate on the indemnity basis.

Orders

  • ['The plaintiff is to engage Proof Metal Roofing Australia to perform repair works to No 95 in accordance with the quote dated 26 May 2020, and the plaintiff is responsible for payment of the costs of that work.' 'The plaintiff is to engage Stipo Building & Project Services Pty Limited to replace a section of the...